((orn^U ICam i>rI|onI ICibtat^ 
 
Cornell University Library 
 KF 466.J17 
 
 A treatise on the law of domlcll, nation 
 
 3 1924 018 800 759 
 
Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924018800759 
 
A TREATISE 
 
 ON THE 
 
 LAW OF DOMICIL, 
 
 I^ATIOl^AL, QUASI-I^ATIOI^AL, 
 AND MUNICIPAL, 
 
 BA§ED MAINLY UPON THE DECISIONS OF THE BRITISH 
 AND AMERICAN COURTS. 
 
 WITH ILLUSTRATIONS FROM THE ROMAN LAW AND THE 
 MODERN CONTINENTAL AUTHORITIES. 
 
 Bt M. W. JACOBS. 
 
 BOSTON: 
 LITTLE, BROWN, AND COMPANY. 
 
 1887. 
 
Copyright, 1887, 
 By M. W. Jacobs. 
 
 Kf 
 
 OH 
 
 Univebsitt PbKS8: 
 John Wilson add Son, Cambridge. 
 
PREFACE. 
 
 It is the purpose of t\ie following treatise to pre- 
 sent to the profession a general discussion of the 
 subject of Domie^.. ufi'''its several phases, — national, 
 g'Masi-national, and municipal. With the exception 
 of a little book by Round, only two general treatises 
 upon the subject have appeared in the English lan- 
 guage, — namely, those of Phillimore and Dicey, both 
 works of great excellence, but not meeting the re- 
 quirements of the American lawyer of the present 
 day ; the former having appeared forty years ago, and 
 the latter being written exclusively . from the stand- 
 point of the English law, and citing very few of the 
 multitude of American cases. Too much praise can- 
 not be given to the chapter on " National Domicil " 
 contained in Story's "Conflict of Laws." It has had 
 great influence in moulding the jurisprudence of this 
 country on this subject, and in its successive editions 
 has gone far towards keeping the profession informed 
 with regard to the current of judicial decision. Dr. 
 Wharton's chapter on " Domicil," in his treatise on 
 " The Conflict of Laws," has rendered similar service. 
 But the general scope of both of these works necessa- 
 rily rendered the discussion brief, and forbade extended 
 
iv PREFACE. 
 
 references to authorities. In view of this state of legal 
 literature and the wide and constantly increasing ap- 
 plication of the principle of Domicil to the determination 
 of legal questions, as well as the great multiplication 
 of decided cases on the subject in this country, it 
 has appeared to the writer that a general treatise on 
 the subject, such as is now presented, might be of 
 some service to the profession, and hence not entirely 
 unacceptable. 
 
 It cannot be too carefully kept in mind that the 
 subject of Domicil, whatever may be its application 
 to purely municipal purposes, is a part of the jus gerir- 
 tium, and is constantly applied in the field of Inter- 
 national Law, public and private, for the determination 
 of relations which extend beyond the limits of a single 
 State or country. It is therefore greatly to 'be re- 
 gretted that any distinctive local jurisprudence on the 
 subject should arise in any State or country, and thus 
 add to the already too great want of uniformity in the 
 adjudication of identical questions in different juris- 
 dictions. That such result will to a certain extent 
 naturally and almost necessarily happen is true ; but 
 to minimize its extent is manifestly in the interest of 
 both scientific jurisprudence and practical justice. From 
 this consideration, as well as because in many instances 
 much light is thrown by foreign authorities upon points 
 as yet unsettled in our jurisprudence, I have sought to 
 discuss the law of Domicil in the light of all the au- 
 thorities, domestic and foreign, ancient and modern, 
 available to me; and in view of the fact that many 
 of the foreign authorities are practically inaccessible 
 to a large majority of American lawyers, I have taken 
 
PREFACE. 
 
 the liberty of quoting from them frequently and in 
 some instances at considerable length. 
 
 Some writers on Domicil have included in their dis- 
 cussions the consideration of the " Domicil of Corpora- 
 tions." This, however, is only a figurative application 
 of the term "Domicil," and is in some respects mis- 
 leading. Its consideration has been omitted from this 
 treatise, which is confined exclusively to the Domicil 
 of natural persons. 
 
 The various applications of the principle of Domicil 
 are so numerous, particularly in American law, that 
 it has been found impossible to discuss them in detail 
 and at length without either on the one hand unduly 
 expanding this work or on the other too far sacrific- 
 ing the discussion of the main subject; to wit, the 
 nature and ascertainment of the Domicil of natural 
 persons. Some of the most important applications 
 have, however, been briefly referred to in a single 
 chapter under the head of " The Uses of Domicil." 
 
 M. W. JACOBS. 
 
 Hasrisburg, Pa., 
 
 October, 1887. 
 
TABLE OF CONTENTS. 
 
 CHAPTER I. 
 INTRODUCTION. 
 
 Section 
 
 Municipal Organization of the Boman World 1 
 
 Origo and Domicilium in the Roman law 2-10 
 
 Origo 3, 4 
 
 Domicilium 5 
 
 Origo not Domicil of Origin 6 
 
 Consequences of Origo and Domicilium . . 7-10 
 
 Subjection to Municipal Burdens 8 
 
 Subjection to Local Magistrates ; Forum 9 
 
 Personal Law 10 
 
 Transition to Modern Law 11-16 
 
 Personal Law 12 
 
 Id. Race Descent 13 
 
 Local Laws and Customs 14 
 
 Real and Personal Statutes ; Return to Domicil 15 
 
 Codification and Political Nationality 16 
 
 Domicil in British Jurisprudence 17-19 
 
 Early English Cases 18 
 
 Early Scotch Cases 18a 
 
 Bruce v. Bruce and its Sequents 19 
 
 Domicil in American Jurisprudence 20 
 
 Present Importance of Domicil in British and American Jurispru- 
 dence . . 21 
 
 Bibliography •. . . 22-24 
 
Viii TABLE OP CONTENTS. 
 
 CHAPTER II. 
 
 USES OF DOMICIL. 
 
 Section 
 
 General Remarks 25 
 
 Domioil in Public International Law; National Character . ... 26 
 
 Naturalization ... 27 
 
 Domicil in Private International and Municipal Law . . . 28 et seq. 
 
 Status 29 
 
 Legitimacy and Legitimation ... 30 
 
 Legal Effects of Legitimation ... ... .31 
 
 Adoption ... 32 
 
 Paternal Power . .33 
 
 Guardianship . . 34 
 
 Minority and Majority ... . ... . . 35 
 
 Marriage . .... .36 
 
 Mutual Property Rights of Husband and Wife . . 37 
 
 Construction of Marriage Contracts . . . ... 37a 
 
 Capacity of Married Women to make Valid Contracts . . 38 
 Jurisdiction in Divorce Cases .... ... 39 
 
 Relation of Domicil to Assignments of Movables ... 40 
 
 General Assignments ; Bankruptcy . ... 41 
 
 Intestate Succession .42 
 
 Testamentary Succession ; Validity of Wills . . 43 
 
 Construction of Wills ... . . 44 
 
 Probate and Administration . . 45 
 
 Legacy and Inheritance Taxes .46 
 
 Jurisdiction . .... 47 
 
 Judicial Citizenship . . 48 
 
 Attachments against Non-Residents ... 49 
 
 Limitation of Actions . . ... .50 
 
 Taxation 51 
 
 Liability to other Public Burdens 52 
 
 Militia Service ... 52 
 
 Jury Service 52 
 
 Right to Vote 53 
 
 Eligibility to Office 54 
 
 Settlement under the Poor-Laws 55 
 
 Homestead and other Exemptions 56 
 
TABLE OP CONTENTS. IX 
 
 CHAPTER III. 
 
 DEriNITIONS. 
 
 Section 
 
 Difficulty of Defining Domicil 57 
 
 Definitions of the Roman Law ... 58-61 
 
 Definition of the Code 58 
 
 Id. Criticism of Lord Cranworth in Whicker v. Hume ... 59 
 
 Id. Kindersley, V. C, in Lord v. Colvin .... 60 
 
 Definitions of the Digest : Ulpian ; Alfenus Varus .... 61 
 
 Other Definitions : DoneUus ; JohnVoet; Hertius ; Pothier ; Vattel 62 
 
 Definitions of French Jurists : Denizart ; Pothier ; Encyclopddie 
 
 Moderne ; French Code ; Demolombe ; Proudhon ; Demante ; 
 
 Ortolan ; Marcad6 63 
 
 Definitions of Savigny and Calvo ... 64 
 
 American Definitions : Story ; President Rush ; Parker, J., in Put- 
 nam V. Johnson 65 
 
 Definitions of English Judges : Kindersley, V. C, in Lord v. Col- 
 vin ; Lord Wensleydale, in Whicker v. Hume 66 
 
 English Text-writers : Phillimore ; Foote ; Westlake ; Dicey . . 67 
 Miscellaneous Definitions : Wolff ; Forcellini ; Gliick ; BouUenois ; 
 Desquiron ; Vallette ; Emmery ; Italian Code ; Sardinian Code ; 
 Melizet's Case ; El Diccionario de Legislacion ; Paige, J., in Craw- 
 ford V. Wilson; Wilson v. Terry; Woodward, J., in Chase v. Mil- 
 ler ; Wing, J., in Rue High, Appellant ; Bishop 68 note 
 
 Definitions usually not Broad enough to include all Phases of Domicil 68 
 
 Is Domicil Place or Legal Relation ? 69 
 
 Domicil and Home ... . 70-72 
 
 Similarity . . 70 
 
 Differences 71 
 
 Home the Fundamental Idea of Domicil 72 
 
 Domicil and Residence . 73-75 
 
 Attempts to define Residence 74 
 
 " Residence "in American Legislation generally means " Domicil " 75 
 
 Domicil and Inhabitancy 76 
 
 Division of Domicil into National, juasi-National, and Municipal . 77 
 
TABLE OP CONTENTS. 
 
 CHAPTER IV. 
 GENERAL RULES. 
 
 Section 
 . 78 
 
 General Remarks 
 
 (1) Every Person must have a Domicil somewhere. 
 
 Roman Law and Modern Civilians 79, 80 
 
 British and American Authorities 81-83 
 
 Vagabonds, Gypsies, etc 84 
 
 French Jurists 85 
 
 Municipal Domicil . 86, 87 
 
 (2) No Person can at the same Time have nwre than one Domicil. 
 
 Roman Law 88 
 
 French Jurists 89 
 
 Necessity for Unity of Domicil 90 
 
 British and American Authorities 91-93 
 
 Lord Alvanley in Somerville v. Somerville, and Lord Lough- 
 borough in Ommanney «. Bingham 93 
 
 " Domicil " and " Principal Domicil" 94 
 
 Different Domicils for Different Purposes 95, 96 
 
 Municipal Domicil 97 
 
 (3) Every Person who is sui juris and capable of controlling his 
 Personal Movements may change his Domicil at Pleasure. 
 
 Roman Law 98 
 
 Modern Continental Jurists 99 
 
 British and American Authorities 100 
 
 Municipal Domicil 101 
 
 CHAPTER V. 
 
 CLASSIFICATION OF DOMICIL. 
 
 Classifications suggested by various Writers 102 
 
 Division of this Treatise 103 
 
 CHAPTER VI. 
 
 DOMICIL OF ORIGIN. 
 
 General Remarks .... 104 
 
 Domicil of Origin, how constituted 2q5 
 
 Roman Law . ■ i rifi 
 
TABLE OF CONTENTS. xi 
 
 Section 
 
 Opinions of Continental Jurists 107, 108 
 
 Immutability 107 
 
 Constitution and Change 108 
 
 Domicil of Origin in British and American Jurisprudence .... 109 
 
 (1) " Domicil of Origin clings closely " 110 
 
 Udnyp. Udny Ill 
 
 Udny V. Udny criticised 112 
 
 Doctrine of, not likely to be held in America .... 113 
 Domicil of Origin adheres until another Domicil is 
 
 acquired , 114 
 
 Presumption against a Change of Domicil of Origin . . 115 
 But this Presumption modified by Circumstances . 116, 117 
 This Presumption applies also in favor of resumed Dom- 
 icil of Origin 118 
 
 (2) " Domicil of Origin reverts easily " 119 
 
 Usually slighter Evidence required to show Eeverter of 
 
 Domicil of Origin than Acquisition of a new Domicil . 119 
 This Principle, however, a Relative One 120 
 
 CHAPTER VII. 
 CHANGE OF NATIONAL AND QUASI-NATIONAL DOMICIL. 
 
 General Remarks 121 
 
 Domicil of Origin more difficult to change than Acquired Domicil . 122 
 National Domicil more difficult to change than quasi-Naiional 
 
 Domicil 123 
 
 Change of Domicil a Serious Matter, and presumed against . . . 124 
 Change of Domicil a Question of Act and Intention .... 125, 126 
 The requisite Factum complete Transfer of Bodily Presence . 127 et seq. 
 
 Dictum of Sir John Leach in Munroe v. Douglas 128 
 
 Wood, V. C, in Forbes v. Forbes; Wharton; Westlake ... 129 
 
 Domicil cannot be changed in itinere 130 et seq. 
 
 A fortiori, no Change takes Place when the Territorial 
 Limits of the Old Domicil have not been passed . . . 132 
 
 Residence in a Definite Locality not necessary 133 
 
 No Length of Residence necessary to constitute Domicil . . . 134 
 Intention necessary. Length of Residence not sufficient in the Ab- 
 sence of Intention 135, 136 
 
 Character of Animus or Intention 137 et seq. 
 
 (i) Capacity to choose 137 
 
 (ii) Freedom of Choice 138-142 
 
 Compulsory Change of Bodily Presence 138 
 
 Inability to return 139 
 
 Compulsion and Motive . 140, 141 
 
 Motive immaterial if the proper Intention exist .... 142 
 
Xii TABLE OP CONTENTS. 
 
 Section 
 
 (Hi) Actual Choice ■' \-i' iaa 
 
 Requisite Animus not Intention to change Political Nationality 144 
 
 Moorhouse ti. Lord; Expressions of Lords Cranworth and 
 Kingsdown, and Comments thereon 145-147 
 
 Nor Intention to change Civil Status 148, 149 
 
 The Requisite Animus defined ^ . 150 
 
 (1) Animus non revertendi 151 ei seq. 
 
 Mere Absence does not destroy Domicil 152 
 
 Abandonment not a mere Matter of Sentiment .... 153 
 " Floating Intention to return." Story's Proposition 154, 155 
 Examination of Authorities upon which Story's Proposition 
 
 ■was based 155 
 
 Near and Remote Contingency ... ... 156-158 
 
 Lord Campbell in Aikman v. Aikman 156 
 
 Craigie v. Lewin 157 
 
 How far the Distinction between Near and Remote Con- 
 tingency is applicable in view of the late British Cases 
 
 doubtful 158 
 
 Story's Proposition in the American Cases . .... 159 
 
 Occasional Visits to, and Retention of Place of Abode at, 
 
 Place of former Domicil 160 
 
 Animus non revertendi need not be Express or Conscious . 161 
 
 (2) Animus manendi 162 et seq. 
 
 Roman Law 163 
 
 Continental Jurists 164, 165 
 
 British Authorities 166 ef seq. 
 
 Intention to remain " for an Indefinite Time " . . . 1Q8 
 
 Intention to remain during the Life of Another . . 169 ■ 
 
 American Authorities 170 et seq. 
 
 Intention to remain " for an Indefinite Time " . 171, 172 
 Intention to make the New Place the Home of the Party . 173 
 Negative View of Animus Manendi, — " without any Pres- 
 ent Intention of Removing " 174 
 
 Animus Manendi does not exclude the Possibility of Chajige 175 
 
 Contingent Animus Manendi not sufficient 176 
 
 Intention to reside presently necessary . 177 
 
 Animus need not be Present at the Time of Removal; it may 
 
 grow up afterwards 178 
 
 At what Point of Time Domicil vests and is divested 179 
 
TABLE OP CONTENTS. xiii 
 
 CHAPTER VIII. 
 
 CHANGE OF MUNICIPAL DOMICIL. 
 
 Section 
 Municipal Domicil more easily changed than National or quasi- 
 
 National Domicil 180 
 
 Presumption against Change ig\ 
 
 Factum et Animus necessary for a Change 182 
 
 The requisite Factum 182 
 
 The requisite Animus 183 et sea. 
 
 (1) Capacity to Choose 183 
 
 (2) Freedom of Choice 183 
 
 (3) Actual Choice 183 
 
 Animus non Revertendi 184 
 
 Animus Manendi 185 
 
 The Negative View of the Animus Manendi 186 
 
 Intention to make the new Place of Abode " Home " . . . . 187 
 
 Contingent Animus Manendi 188 
 
 Double Residence 189 
 
 CHAPTER IX. 
 REVERTER OF DOMICIL. 
 
 General Remarks 190 
 
 The Rule of Reverter as laid down by Story 191 
 
 The British Doctrine. TJdny v. Udny 192 et seq. 
 
 Lord Hatherley's Remarks 193 
 
 Lord Chelmsford's Remai-ks 194 
 
 Lord Westbury's Remarks 195 
 
 Doctrine of Udny ». TJdny not drawn from the Civilians . . . 196 
 
 Domicil of Origin in the Early British Cases 197 
 
 Udny V. Udny and the British Prize Cases 198 
 
 Objections on Principle to Udny v. Udny 199 
 
 Westlake on Reverter 200 
 
 American Doctrine of Reverter 201 
 
 Doctrine of Udny v. Udny not held on the Continent 202 
 
 Reverter not to be presumed 203 
 
 Burden of Proof on him alleging Reverter 203 
 
 Tlie Requisite Factum for Reverter 204 
 
 The Requisite Animus non Revertendi 205 
 
 Transit to Domicil of Origin need not be Direct 206 
 
 Quasi-National Domicil the Subject of Reverter 207 
 
 Otherwise as to Municipal Domicil 207 
 
 Acquired Domicil not the Subject of Reverter 208 
 
xiv TABLE OF CONTENTS. 
 
 CHAPTER X. 
 
 DOMICIL OF PARTICULAE PEESONS, — MARRIED WOMEN. 
 
 Section 
 
 General Doctrine 209 
 
 Roman Law 210 
 
 Betrothal. Arnott v. Groom 211 
 
 Invalid Marriage 212 
 
 Wife receives Domicil of Husband instantly upon Marriage . . . 213 
 Domicil of Wife follows that of Husband whether or not she accom- 
 panies him to his New Place of Abode •• 214 
 
 Wife cannot select a Domicil for herself 215 
 
 Even with the Consent of her Husband 215 
 
 Even though a Formal Deed of Separation has been executed . 216 
 Wife divorced, either a Vinculo or a Mensa et Thoro, may establish 
 
 a Domicil for herself . . 217 
 
 Domicil of a Femme Separee de Corps under the French Code Civil . 218 
 Power of a Wife divorced a Mensa et Thoro to establish a Domicil 
 
 for herself 219 et seq. 
 
 British Authorities 219, 220 
 
 American Authorities ... 221 
 
 Domicil of Husband continues to be that of Divorced Wife or 
 
 Widow until she has established another for herself 222 
 
 Can a Wife who is entitled to a Divorce establish for herself a 
 
 Domicil different from that of her Husband ? 223 et seq. 
 
 American Cases . . 224, 224o 
 
 English Cases 225 
 
 Doctrine, if at all admissible, does not extend beyond Cases of 
 Divorce 226, 227 
 
 CHAPTER XL 
 
 DOMICIL OF PARTICULAR PERSONS (conifntierf),— INFANTS. 
 
 Domicil of Origin of Children, legitimate and illegitimate . . . 228 
 
 Domicil of Infant cannot be changed by his own Act 229 
 
 Roman Law . 230 
 
 Rule of Disability sometimes stated in a Qualified Form ; Uneman- 
 
 cipated Minor 231 
 
 Is there any Exception in favor of a Married Minor? 232 
 
 Other Exceptions suggested 233 
 
 An Emancipated Minor an Exception under the French Law . . . 234 
 
TABLE OP CONTENTS. XV 
 
 Section 
 The Domicil of a Minor follows that of his Father during the Life 
 
 of the Latter 235 et seq. 
 
 Even though the Minor does not dwell with his Father . . . 236 
 
 Possible Exception 237 
 
 Upon the Death of the Father the Domicil of the Infant follows 
 
 that of his Mother 238 et seq. 
 
 British Authorities : Potinger v. Wightman ; Arnott v. Groom 239 
 
 American Authorities 240 
 
 Does the Domicil of the Infant necessarily follow that of his 
 Widowed Mother, or may the Latter change hers without 
 
 afEecting that of her Infant Child ? 241 
 
 Is the Qualification that the Mother must " act without Fraud," 
 
 a Valid One? 242,243 
 
 Power of the Mother does not extend beyond Widowhood . . 244 
 
 Domicil of Illegitimate Children 244a 
 
 Upon the Death of both Parents, an Infant may acquire the Domicil 
 
 of a Grandparent 245 
 
 Domicil of an Apprentice 246 
 
 Adopted Child 247, 248 
 
 Has a Guardian Power to change the Domicil of his Minor 
 
 Ward? 2^9 et seq. 
 
 Continental Authorities in the Affirmative 250 
 
 Continental Authorities in the Negative 251 
 
 English Text-writers 252 
 
 American Text-writers 253 
 
 No Direct Decision in England 254 
 
 American Decisions 255-260 
 
 (1) Natural Guardian may change the Domicil of his In- 
 
 fant Ward 255 
 
 (2) Domicil of the Guardian is not necessarily that of his 
 
 Ward . . 256 
 
 (3) Guardian may change the Municipal Domicil of his 
 
 Ward ' . . 257 
 
 (4) Power of Guardian to change the National or quasi- 
 
 National Domicil of his Ward 258, 259 
 
 Cases in the Affirmative 258 
 
 Cases in the Negative 259 
 
 General Results of the American Cases 260 
 
 General Reasons against the Power of the Guardian to change 
 the National or ^uaW-National Domicil of his Infant 
 Ward 261-263 
 
xvi TABLE OF CONTENTS. 
 
 CHAPTER XII. 
 
 DOMICIL OF PARTICULAR PERSONS {continued), — 'SO'S COMPOTES 
 AND PAUPERS. 
 
 (a) Non Compotes. 
 
 Section 
 
 General Principles • ^64 
 
 Relation of Guardian to the Domicil of his Insane Ward .... 265 
 
 French Law 266 
 
 Relation of Father to the Domicil of his Insane Major Child . 267, 268 
 Domicil of Insane Persons not changed by Removal to Asylum . . 269 
 
 (b) Paupers. 
 
 Domicil of Pauper not changed by Removal to Poor-house .... 270 
 Inmates of H6tel des Invalides in France, and of Soldiers' Homes 
 in this Country 271 
 
 CHAPTER XIII. 
 
 DOMICIL OF PARTICULAR PERSONS (coniinuecf), — PRISONERS, 
 EXILES, REFUGEES, ETC. 
 
 Domicil not changed by Imprisonment 272 
 
 Prisoner may acquire Domicil where he is imprisoned 273 
 
 Prisoner for Life 274 
 
 Transported Convict .... 275 
 
 " Relegatus " in the Roman Law .... . 276 
 
 Exiles 277, 278 
 
 Refugees . 279 
 
 Political Refugees 280 
 
 De Bonneval v. De Bonneval 281 
 
 White V. Brown ... 282 
 
 Ennis v. Smith 283 
 
 Fugitives from the Horrors and Dangers of War . . .... '284 
 
 Exile or Fugitive may acquire Domicil at the Place where he takes 
 
 Refuge 285 
 
 Absconding Debtors 286 
 
TABLE OF CONTENTS. Xvii 
 
 CHAPTER XIV. 
 
 DOMICIL OF PARTICULAR PERSONS (contmued), — INVALIDS. 
 
 Section 
 
 General Remarks 287 
 
 Lord Campbell, in Johnstone v. Beattie 288 
 
 Lord Kingsdown, in Moorhouse v. Lord 289 
 
 Sir John Dodson, in Laneuville v. Anderson 290 
 
 Hoskins v. Matthews .... 291 
 
 Hegeman v. Fox 292 
 
 Isham V. Gibbons . 293 
 
 Dupuy V. Wurtz . 294 
 
 Still V. Woodville 295 
 
 Lord Westbury, in Udny v. Udny 296 
 
 CHAPTER XV. 
 
 DOMICIL OF PARTICULAR PERSONS (contmaerf), — SOLDIERS 
 AND SAILORS. 
 
 (a) Soldiers and Sailors in the War Marine. 
 
 Roman Law .... 297 
 
 French Jurists 298 
 
 Does a Soldier necessarily become domiciled within the Territory 
 
 of the Sovereign whom he serves ? 299, 300 
 
 Can a Soldier acquire a Foreign Domicil ? . . . . . . 301, 802 
 
 Hodgson V. De Beauchesne .... 301 
 
 East India Cases 302 
 
 Quasi-National and Municipal Domicil not affected by Military 
 Service 303 
 
 (b) Sailors in the Merchant Marine. 
 
 Fewer Facts in the Life of a Sailor from which to determine his 
 Animus than in the Lives of most other Persons .... . 304 
 
 Sailor does not lose his Domicil by following the Sea 305 
 
 Nothing in his Vocation which prevents him from changing his 
 Domicil 305 
 
 Residence of Wife of Great Importance in determining the Domicil 
 
 of a Sailor 306 
 
 b 
 
xviii TABLE OP CONTENTS. 
 
 CHAPTER XVI. 
 
 DOMICIL OF PARTICULAR PERSONS {continued), — FVELIC CIVIL 
 
 OFFICERS. 
 
 Section 
 
 General Keraarks 3*^^ 
 
 Life Functionaries 308, 309 
 
 Holders of Temporaiy or Revocable Offices or Employments . 310 et seq. 
 
 Continental Authorities ... . . 311 
 
 English Cases .... 312 
 
 American Cases 313 
 
 Public Officer may acquire Domicil where the Duties of his Office 
 
 are to be performed 314 
 
 Public Officer remaining after the Expiration of Office 315 
 
 American State Constitutions ... 316 
 
 CHAPTER XVII. 
 
 DOMICIL OF PARTICULAR PERSONS (conimuerf),— AMBASSADORS 
 AND CONSULS. 
 
 (a) Ambassadors. 
 
 The Domicil of a Person is not affected by entering the Diplomatic 
 
 Service of his Country abroad 317-320, 322 
 
 Attorney. General v. Kent 318, 319 
 
 The True Ground of this Principle not Extra-territoriality, but 
 
 Temporary Residence 320 
 
 Can an Ambassador acquire a Domicil in the Country to which he 
 is accredited ? . ....... 321 
 
 (b) Consuls. 
 
 A Person does not change his Domicil by Residence abroad in the 
 
 Consular Service of his Country 323 
 
 Nor by a Consular Appointment in his own Country in the 
 
 Service of a Foreign Country 323 a 
 
 A Consul may acquire a Domicil in the Foreign Country in which 
 he serves .... .... 321 
 
TABLE OP CONTENTS. XIX 
 
 CHAPTER XVIII. 
 
 DOMICU. OF PAETICULAR PERSONS (conimuerf), — STUDENTS. 
 
 Section 
 
 General Statement 325 
 
 Roman Law 326, 827 
 
 Domicil of Student as viewed in this Country 328 et seq. 
 
 Massachusetts Cases 329-333 
 
 Opinion of the Judges 329-331 
 
 Granby v. Amherst 332 
 
 Putnam v. Johnson ... 333 
 
 Fry's Election Case 334, 335 
 
 Sanders v. Getchell 336, 337 
 
 Principles of above Cases applicable to both juasi-National and 
 
 Municipal Domicil 338 
 
 State Constitutions ... 339 
 
 Presumption in favor of Acquisition of Domicil by a Student who 
 remains after the Completion of his Studies 340 
 
 CHAPTER XIX. 
 DOMICIL IN PARTICULAR PLACES. 
 
 (a) Domicil of Foreigners in France. 
 
 Art. 13 of the French Code Civil 341 
 
 The Difficulty attending the Discussion of the Subject largely one of 
 
 Method 342 
 
 Various Opinions held in France 343-347 
 
 (1) That a Foreigner cannot establish a Domicil in that Coun- 
 
 try even with Authorization 343 
 
 (2) That a Foreigner may establish a Domicil in France only 
 
 with Authorization 344, 345 
 
 (3) That a Foreigner may establish a Domicil in France with- 
 
 out Authorization .... 346, 347 
 
 Decisions of the French Courts 348 
 
 English Cases 349-354 
 
 Collier v. Rivaz 349 
 
 Anderson v. Laneuville 350 
 
 Bremer v. Freeman 351 
 
 Hodgson V. De Beauchesne 352 
 
 Hamilton v. Dallas 353 
 
 Results of the English Cases 354 
 
XX TABLE OF CONTENTS. 
 
 Section 
 
 American Cases ^^^' ^°^_ 
 
 Dupuy V. Wurtz ^^^ 
 
 liarral v. Harral 356 
 
 Are the Consequences of Authorization Personal, or do they extend 
 
 to Wife and Family ? ^57 
 
 (b) Domieil in Eastern Countries. 
 Different Rules for the Determination of Domieil applicable to East- 
 ern and to Western Countries 358, 359 
 
 Lord Stowell, in The Indian Chief 358 
 
 Dr. Lushington, in Maltass v. Maltass 359 
 
 Can an American or European acquire a Domieil in an Eastern 
 Country? Re Tootal's Trusts 360,361 
 
 CHAPTER XX. 
 
 CRITERIA or DOMICIL, OR THE EVIDENCE BY WHICH 
 DOMICIL IS SHOWN. 
 
 Recapitulation of General Principles of Evidence already referred to 862 
 The Discussion relates directly to the Domieil of Independent Persons 363 
 
 The Necessary Factum Simple and Easy to prove 364 
 
 The Necessary Animus Complex and often Difficult to prove . . . 365 
 Each Case must be determined upon its own Circumstances . . 366-368 
 All the Facts of a Man's Life Evidence of his Domieil . . . 369, 370 
 
 Probabiles Conjecturm 371 
 
 Facts to be construed untechnically and according to their Natural 
 
 Import 372 
 
 Certain Facts usually entitled to more Weight than others . . . 373 
 The Definitions of Domieil in the Roman Law mainly Formulm of 
 
 Evidence 374 
 
 CHAPTEE XXI. 
 
 CRITERIA OF DOMICIL (continued), — RESIDENCE AND LAPSE 
 OF TIME. 
 
 Presence at a Place pn'ma/acie Evidence of Domieil there . . . . 375 
 
 Such Prima Fades subject to Rebuttal . 376 
 
 Residence as Evidence of Domieil 377-381 
 
 Wayne, J., in Ennis v. Smith . . 378 
 
 Residence by itself Equivocal 379 
 
 Sir Herbert Jenner, in De Bonneval v. De Bonneval .... 380 
 
 Lord Westbury, in Bell v. Kennedy 381 
 
 Sir John NichoU, in Moore v. Darrell 381 
 
TABLE OP CONTENTS. Xxi 
 
 Section 
 
 Length of Residence or Time 382 et seq. 
 
 Eomau Law and Continental Jurists 383-385 
 
 Lord Stowell, in The Harmony 386 
 
 Criticism of Lord Stowell's Position 387 
 
 If Time is Conclusive Evidence of Domicil, what Length of 
 
 Time? 388 
 
 Dr. Lushingtou, in Hodgson v. De Beauchesne 389 
 
 Kindersley, V. C, in Cockrell v. Cockrell 390 
 
 Poland, J., in Hulett v. HUett 391 
 
 Story, J., in The Ann Green . 392 
 
 Illustrative Cases in which Long Residence was held insufficient 
 
 to change Domicil 393-396 
 
 Illustrative Cases in which Length of Time was held sufficient 
 
 to change Domicil 397-399 
 
 Result of the Decisions 400 
 
 CHAPTEE, XXII. 
 
 CRITEEIA OF DOMICIL (continued), — llESIDESCE OF WIFE 
 AND FAMILY. 
 
 A Man is presumed to be domiciled where his Wife and Family 
 
 reside 401 ei seq. 
 
 Their Residence at least prima facie Evidence of his Domicil . 402 
 
 Bangs V. Brewster and Anderson v. Anderson 403 
 
 But a Wife cannot control the Domicil of her Husband . . . 404 
 
 The Presumption is not conclusive 405 
 
 Residence of Children, Grandchildren, and other Relatives . . . 406 
 National Character and Religion of Wife, Form of Marriage Cere- 
 mony, etc 407 
 
 Relation of Place of Marriage and Residence of Wife to guasir 
 
 National Domicil 408 
 
 Betrothal as Evidence of Domicil 409 
 
 CHAPTEE XXIII. 
 
 CRITERIA OF DOMICIL (conrinwet/), — RESIDENCE AND ENGAGING 
 IN BUSINESS, MODE OF LIVING, OWNERSHIP OF EEAL 
 ESTATE, ETC. 
 
 Residence and Engaging in Business . . 410-413 
 
 Opinions of the Civilians 411 
 
 Municipal Domicil 412 
 
 Place of Residence preferred to Place of Business 413 
 
xxii TABLE OF CONTENTS. 
 
 Section 
 
 Mode of Living 414 ei seg. 
 
 Kesidence in Hotels or Temporary Lodgings 415 
 
 Leased Houses or Lodgings . . 41 6 
 
 Ownership of Dwelling-house or other Keal Estate . . . . 417 
 
 Sale of Dwelling-house or other Real Estate 418 
 
 Purchase of Dwelling-house or other Real Estate 419 
 
 Location of Personal Property 420 
 
 CHAPTER XXIV. 
 
 CRITERIA OF DOMICIL (continued), — TiOVBLE RESIDENCE. 
 
 Difficult to determine the Domicil of a Person who resides in dif- 
 ferent Places . 421 
 
 Double Residence and National Domicil 422 
 
 Double Residence and Municipal Domicil 423 
 
 May a Person having several Residences select his Place of Domicil? 424 
 Domicil of a Person whose Dwelling-house is on the Dividing Line 
 
 of two Districts 425 
 
 CHAPTER XXV. 
 
 CRITERIA or -DOMICIL {continued). — PL AC'S OF DEATH 
 AND BURIAL. 
 
 Place of Death ... . . .426 
 
 Place of Burial . . .427 
 
 Purchase of Burial-place . 428-430 
 
 Haldane v. Eckford . . 428 
 
 Succession of Franklin . . . . 429 
 
 Hodgson V. De Beauchesne ... . . 430 
 
 Sale of Burial-place 431 
 
 CHAPTER XXVI. 
 
 CRITERIA OF DOMICIL {continued), — VVBLIC ACTS: NATURALI- 
 ZATION, VOTING, PAYMENT OF TAXES, HOLDING OFFICE, ETC. 
 
 Naturalization 432-434 
 
 Continental Jurists 433 
 
 British and American Authorities 434 
 
 Voting 435-441 
 
 Offering to Vote 43g 
 
TABLE OP CONTENTS. XXIU 
 
 Section 
 
 Refusal to Vote 437 
 
 Failure to Vote 438 
 
 Absence of Right to Vote 439 
 
 Voting: English Cases 440 
 
 French Authorities . 441 
 
 Payment of Personal Taxes 442 
 
 Omission or Refusal to pay Taxes 443 
 
 Holding Office 444 
 
 Treatment by Public Officers .... 445 
 
 Jury Service ... 446 
 
 Militia Service 447 
 
 Taking Part in Town Meetings ... 448 
 
 CHAPTER XXVII. 
 
 CRITERIA OF DOMICIL (conimuerf), — DECLARATIONS, ORAL AND 
 WRITTEN; TESTIMONY OF PERSON WHOSE DOMICIL IS IN 
 QUESTION AS TO HIS INTENTION. 
 
 General Remarks . . 449 
 
 Formal Declarations of DomicU 450 
 
 Declarations accompanying and explanatory of Acts admissible as 
 
 Part of the Res Geslas . . 451 
 
 Declarations immediately explanatory of the Act of Removal . . 452 
 Declarations mediately explanatory of the Act of Removal . . . 453 
 Declarations not Evidence of Facts, but only explanatory of them . 454 
 Declarations not conclusive ; their Weight depends upon Circum- 
 stances .... 455 
 
 Value of Declarations ; Remarks of various Judges ... . 456-459 
 
 Written Declarations : Letters 460 
 
 Id. Descriptions in Deeds . 461 
 
 Id. Descriptions in Wills 462 
 
 Id. Descriptions in Wills and Deeds not conclusive . .... 463 
 
 Id. Descriptions in Judicial Proceedings ... 464 
 
 Omission to Speak 465 
 
 Form of Will ; Spelling of Name 466 
 
 Person whose Domicil is in question may testify as to his Intent . 467 
 
TABLE OF CASES. 
 
 A. 
 
 Page 
 
 Abiagton v. Boston, 4 Mass. 312 257 
 
 ( 91, 114, 123, 124, 125, 
 
 V. North Bridgewater, 23 Pick. 170 \ 140, 146, 165, 156, 164, 
 
 ( 175, 256, 468, 511, 525 
 
 Adams v. Evans, 19 Kans. 174 188, 201 
 
 0. Oaks, 20 Johns. 282 326 
 
 Afflick's Estate, Matter of, 3 MacAr. 95 123, 340, 363 
 
 Aikman v. Aikman, 3 Macq. H. L. 854 ; 7 Jur. ) 42, 60, 148, 174, 175, 176, 187, 
 
 (n. s.) 1017 ; 4 L. T. (n. s.) 374 ; (In Court of f 216, 218, 223, 225, 227, 234, 
 
 Session) 21 D. (Sc. Sess. Cas. 2d ser. 1859) ( 239, 254, 402, 405, 508, 512. 
 
 757 ) 513, 619, 565, 560, 557, 560 
 
 Aitchison v. Dixon, L. R. 10 Eq. Cas. 589 ; 39 L. J. Ch. 705 ; 23 L. T. (n. s.) 
 
 97;18W. B. 987 205,601 
 
 AUardice v. Onslow, 10 Jur. is. s.) 352 ; 33 ) ^a ooi 007 007 /Iqr Kin 
 L. J. Ch. 434; 9 L. T. (n. s.) 674; 2 W. K. f ^Vo ■ ' ' ' ' 
 397 ) 
 
 Allen V. Thomason, 11 Humph. 536 166, 247, 321, 326, 327, 
 
 332, 333, 338,, 340 
 
 Allison V. Catley, 1 D. (Sc. Sess. Cas. 2d ser. 1839) 1025 305 
 
 Alston V. Newcomer, 42 Miss. 186 125 
 
 Alter V. Waddel, 20 La. An. 246 477 
 
 Ames V. Duryea, 6 Lans. 155 285, 321, 325, 401, 477, 501 
 
 Amherst v. Hollis, 9 N. H. 107 377 
 
 AmisK. Bank, OEob. (La.) 348 200 
 
 Anderson v. Anderson, 42 Vt. 350 Ill, 226, 256, 262, 355, 369, 371, 
 
 374, 481, 494, 501, 502. 
 </. LaneuviUe, 9 Moore P. C. 325; 2 Spinks, ) 176, 177, 205, 223, 226, 227, 
 41 ; 29 Eng. L. & Eq. 59. (See also \ 239, 240, 442, 452, 515, 516, 
 LaneuviUe v. Anderson) ) 565, 556 
 
 Ann Green, The, 1 GaU. 474 180, 187, 199, 200, 217, 241, 245, 
 
 253, 287, 481, 482, 489 
 
 Antonia Johanna, The, 1 Wheat. 159 29, 31 
 
 Arnold & Ramsay v. United Ins. Co., 1 Johns. Cas. 363 22 
 
 Arnottw. Groom, 9 D. (Sc. Sess. Cas. 2d ser. 1846) 142 . . 198,221,251,296, 
 
 332 508 
 
 Ashford v. Tustin, Lovell's Monthly Dig. 1852, p. 389 '53 
 
 Atherton w. Thornton, 8 N. H. 178 408,411 
 
 Attorney-General v. De Wahlstatt, 3 Hurl. & ) 174. 176, 206, 214, 216, 240, 
 Colt. 374; 34 L. J. Exch. 29; 10 Jur. (n. s.) > 532, 533, 552, 554, 565, 
 1159 ; 11 L. T. (N. 8.) 454 ; 13 W. R. 163 ) 564 
 
 V. Dunn, 6 Mees. & W. 511 174, 193, 209, 251, 516 
 
 V. Ktzgerald, 3 Drew. 610 ; 25 L. J. Ch. 743 287, 498, 562 
 
 V. Kent, 1 Hurl. & Colt. 12; 31 L. J. Exch. ) 111, 236, 414, 415, 481, 494, 
 391 ; 6 L. T. (n. s.) 864; 10 W. R. 722 j 663 
 
XXvi TABLE OF CASES. 
 
 Page 
 
 Attorney-General v. Napier, 6 Exch. 217; 15 Jur. 253 ; 20 L. J. Exch. 173 401 
 
 t. Pottinger, 6 Hurl. & Nor. 733; 7 Jur. 5 185, 221, 223, 225, 229, 235, 
 
 (N. s 1 470 ; 30 L. J. Exch. 284 ; 4 L. T. [ 237, 238, 288, 400, 401, 408, 
 
 N. s. 368 9 W. E. 578 ) 410, 415, 470, 514, 516, 562 
 
 V. Rowe, 1 Hurl. & Colt. 31 ; 31 L. J. Exch. / 93, 111, 114, 176, 187, 216, 
 
 314 ; 6 L. T. (n. s.) 438 ; 10 W. R. 718 J 236, 238, 408, 410, 557 
 
 Auburn v. Hebron, 48 Me. 332 370 
 
 B. 
 
 Babbitt v. Babbitt, 69 III. 277 291, 293 
 
 Babcoe-k v. Cass Township, 65 Iowa, 110 257 
 
 Baldwin K.Flagg, 43 N.J. Law (14 Vroom), 495 125,291 
 
 Balfour v. Scott, Morrison, Diet, of Dee. 2379, ) 
 
 4617; Bro. P.O. 650; Robertson, Pers. Sue. ^ 83,291,292,305 
 
 203 ) 
 
 Baltica, The, Spinks' Prize Cas, 264 32 
 
 Baltimore v. Cliester, 63 Vt. 315 ; 38 Am. Rep. 677 377 
 
 Bangs i;. Brewster, 111 Mass. 382 175,186,190,256,257,262, 
 
 402, 405, 501, 502 
 
 Bank v. Balcom, 35 Conn. 351 135, 146, 284, 285, 288, 291, 482 
 
 Exchange v. Cooper (see Exchange). 
 Hackettstown ^.-Mitcliell (see Hackettstown). 
 
 Baptiste v. De Volunbrun, 5 Harr. & J. 86 385 
 
 Barber v. Barber, 21 How. 582 83, 291, 292, 305 
 
 V. Root, 10 Mass. 260 48, 314 
 
 Barnum v. Barnum, 42 Md. 251 . 45, 56 
 
 Barrett & Williford v. Black, 25 Ga. 151 • . 217 
 
 Bartlett t>. City of New York, 5 Sandf. 44 125, 146; 151 
 
 Ex parte, 4 Bradf. 221 355, 363 
 
 Barton v. Irasburgh, 33 Yt. 159 200, 229, 257, 259, 470, 514 
 
 Bate V. Incisa, 59 Miss. 513 132 
 
 Bateman v. Bailey, 5 T. R. 512 552, 553 
 
 Beardstown v. Virginia, 81 111. 541 217, 250 
 
 Beason v. State, 34 Miss. 602 89, 552, 553, 555 
 
 95, 111, 113, 134, 174, 176, 
 187, 196, 199, 200, 230, 
 231, 235, 237, 250, 422, 
 424, 463, 476, 477, 480, 
 513, 552, 560, 565 
 
 V. Packard. 69 Me. 105 ' 47, 67 
 
 V. Reid, 1 Maule & S. 726 19, 29, 30 
 
 Bempde v. Johnstone, 3 Ves. Jr. 198 21, 167, 230, 231, 234, 277, 
 
 404, 475, 476, 478 
 
 Benedict, The, Spinks' Prize Cas. 314 422, 424 
 
 Bennett v. Bennett, Deady, 299 291, 299, 302 
 
 Berembrock's Case, Sirey, 1822, 1. 413 439 
 
 Besant v. Wood, L. R. Ch. D. 605 302 
 
 Bianchi, Goods of, 3 Swab. & Tr. 16 283 
 
 Birtwhistle u. Vardill, 2 CI. & Fin. 571; 7 id. 
 895 ; 9 Bligh N. R. 32 ; 5 B. & C. 438 ; 6 Bing. 
 N. C. 385 ; 8 D. & R. 185 ; 1 Scott N. R. 828 ; 
 West. H. L. 500 
 
 Bishoff V. Wethered, 9 Wall. 812 .' 82, 83 
 
 Bishop V. Bishop, 30 Pa. St. 412 70, 291, 294 
 
 Blaaw V. Chartres, 6 Taunt. 458 405 
 
 Black V. Black, 4 Bradf. 174 188, 190, 230 
 
 Blair v. Western Female Seminary, 1 Bond, 578 504, 505, 541 
 
 Blanchard v. Steams, 5 Met. 298 90, 123, 125, 129, 130, 470 
 
 Bell V. Kennedy, L. R. 1 Sch. App. 
 
 44, 46, 47, 49, 50, 52, 53, 
 54,56 
 
TABLE OP CASES. XXVll 
 
 Blucher ». Milsted, 31 Tex. 621 401. sfl 
 
 Blumenthal v. Tannenholz, 31 N. J. Eq. 194 321, 322, 325 
 
 Blumer, Ex parte, 27 Tex. 736 89, 93, 167, 175, 188, 477, 552, 553 
 
 Boardman v. House, 18 Wend. 520 201 
 
 Bond V. Cumraings, 70 Me. 125 47 
 
 Boon V. Savage, 14 La. R. 169 200 
 
 Boothbay v. Wiscasset, 3 Greenl. 854 90, 405 
 
 Borden y. Fitch, 16 Johns. 121 315 
 
 Borland v. Boston, 132 Mass. 89 . . 89, 114, 126, 130, 135, 146, 188, 196, 285 
 
 Boucioault v. Wood, 2 Biss. 34 123 
 
 Boyce v. Boyce, 23 N. J. Eq. 337 294 
 
 Boyd V. Beck, 29 Ala. 703 217 
 
 Boyes ». Bedale, 1 H. & M. 798 ; 10 Jur. (n. s.) ) 
 
 196; 33 L.J. Ch. 283; 10 L. T. (n. s.) 131 ; f : . . 45, 53 
 
 12 W. R. 232 ) 
 
 Bradford v. Lunenburgh, 5 Vt. 481 332, 338 
 
 V. Young, L. R. 29 Ch. D. 617 173 
 
 Bradley i>. Eraser, 64 Iowa, 289 124,218,257 
 
 V. Lowery, Speers Eq. 1 477, 481, 482, 504 
 
 Bradshaw v. Heath, 13 Wend. 407 316 
 
 Braintree v. Hinghani, 1 Pick. 246 6-54 
 
 Bremer ..Freeman, 10 Moore P. C. 306 . . . { "bt^bTssf 564 "' ^^^' 
 and Bremer, 1 Deane, 192; 5 W. R. 618 . '. 201, 202, 443, 481 
 
 Brent ». Armfeld, 4 Cranch C. Ct. 579 146 
 
 Breul's Case, Sirey, 1854, II. 106 439 
 
 Brewer v. Linnaeus, 36 Me. 428 187, 217, 257, 401, 477, 501 
 
 Briggs V. Briggs, L. R. 5 P. D. 163 176, 385 
 
 V. French, 2 Sunin. 251 33, 207 
 
 V. Rochester, 16 Gray, 337 89, 126-128, 130, 135, 141, 142, 143 
 
 Brook V. Brook, 9 H. L. Cas. 193 ; 7 Jur. (n. s.) I -,. 
 
 422; 4L. T. (N. s.) 93; 9 W. R. 461 J °* 
 
 Brookfield v. Warren, 128 Mass. 287 552, 553, 556, 557 
 
 Brooks V. Clay, 3 A. K. Marsh. 545 554 
 
 Brown v. Ashbough, 40 How. Pr. 260 135, 146, 175, 188, 254, 285 
 
 V. Boulden, 18 Tex. 431 155, 253, 501, 505 
 
 V. Brown, Kilkerran, voce Foreign, No. 1, ' 
 199, Falconer, 11 ; Morrison, Diet. Dec. 
 4604; Elchies, voce Succession, Decis- 
 ions, and Notes; Robertson, Pers. Sue. 92 
 
 V. Lynch, 2 Bradf. 214 ' . . . 291, 332, 333, 3.37, 338 
 
 V. Smith, 15 Beav. 444 ; 21 L. J. Ch. 356 ; 11 Bng. L. & Eq. 6 187, 189, 201, 
 
 236, 401, 556 
 
 V. United States, 5 Ct. CI. 571 209 
 
 Bruce v. Bruce, 2 Bos. & P. 229 note 19, 20, 96, 167, 220, 221, 
 
 231, 277, 414, 476, 478 
 
 Bruce's Case, 2 Crompt. & Jer. 4.36 146 
 
 Brundred v. Del Hoyo, Spencer, 328 123, 126, 501, 502, 552, 553 
 
 Brunei v. Brunei, L. R. 12 Eq. Cas. 298 . . . 212, 226, 235, 253, 481, 494, 553 
 
 Buckland v. Charlemont, 3 Pick. 173 370, 372 
 
 Buffaloe v. Whitedeer, 15 Pa. St, 182 310 
 
 Bulkley v. Williarastown, 3 Gray, 493 126, 129, 140, 149, 187 
 
 Bullock V. Bullock, 122 Mass. 3 48 
 
 Bump V. Smith, 11 N. H. 48 257 
 
 Burchi). Taylor, IPhila. 224; 8 Leg. Int. 130 501,512 
 
 Burgess v. Clark, 3 Ind. 250 552, 553 
 
 Burlen v. Shannon, 115 Mass. 438 48, 299 
 
 Burne v. Cole, Ambler, 415 19 
 
 r 184. 187, 199, 217, 227, 241, 
 
 Burnhamt,.EangeIey,lWoodb.&M.7 . . . -j |g?; f^I', ios! 522, slo; 
 
 I 552, 553, 556 
 
 20 
 
XXviii TABLE OP CASES. 
 
 Page 
 
 Burrell Township «. Pittsburgh, 62 Pa. St. 472 „^,-„.-,o, ™ 
 
 Barton v. Fisher, Milward (Ir. Eocl.), 183 93, 174, 187, 377 
 
 Butler V. Farnsworth. 4 Wash. C. Ct. 101 . . 83, 200, 208, 216, 241, 655, 556 
 
 V. Hopper, 1 Wash. C. Ct. 499 216, 241, 514, 548 
 
 Bye, Matter of, 2 Daly, 526 37,123,135,138,164,166,402, 
 
 ^' ' 405,601,603,604,537 
 
 Cabot V. Boston, 12 Cush. 52 520, 541, 560 
 
 Cadwallader v. Howell & Moore, 3 Harr. (N. J.) 138 .. . 123, 124, 199, 217, 
 
 477, 501 
 
 Cambridge v. Charlestown, 13 Mass. 601 504, 505, 586 • 
 
 Campbell v. White, 22 Mich. 178 12.3, 241 
 
 Capdevielle, In re, 3 Hurl. & Colt. 985 ; 10 Jur. J 18, 111, 131, 147, 187, 201, 
 (N.8.) 1155; 33 L. J. Exch. 306; 12 W. K. > 202,210,216,219,225,226, 
 1110 ) 482, 491. 510 
 
 V. Capdevielle, 21 L, T. (n. s.) 660 174, 176, 235, 492, 498, 635 
 
 Carey's Appeal, 75 Pa. St. 201 112,188,199,200,246,247, 
 
 251, 253, 477, 641, 546, 662 
 
 Carlisle v. Tuttle, 30 Ala. 613 337 
 
 Carnoe v. Freetown, 9 Gray, 357 199 
 
 Carpenter v. Commonwealth of Pennsylvania, 17 How. 456 80 
 
 Case V. Clarke, 5 Mason, 70 207, 230 
 
 Casey's Case, 1 Ashm. 126 123, 188, 190, 503, 504 
 
 Caskie v. Webster, 2 Wall. Jr. C. Ct. 131 74 
 
 Castor V. Mitchell. 4 Wash. C. Ct. 191 241, 512, 552 
 
 Catlin V. Gladding, 4 Mason, 308 83, 180, 187, 241, 246, 501 
 
 Cavendish v. Troy, 41 Vt. 99 564 
 
 Cazanova's Case, Sirey, 1861, 1. 800 439 
 
 Chaine v. Wilson, 1 BosW. 673 11.3, 189, 201, 216, 230, 246, 501, 
 
 502, 515 
 
 Chariton Co. v. Moberly, 59 Mo. 238 124 
 
 Charleston v. Boston, 13 Mass. 468 322 
 
 Chase v. Miller, 41 Pa. St. 403 113, 128 
 
 Cheever v. Wilson, 9 Wall. 108 315, 316 
 
 Chenery v. Waltham, 8 Cush. 327 524, 626, 588 
 
 Cherry v. Slade, 2 Hawks. 400 552, 554 
 
 Cheshire, The, 8 Wall. 231 31 
 
 Chicago & Northwestern Ey. Co. v. Ohle, 117 U. S. 123 .... 208, 251, 541 
 
 Chichester v. Donegal, 1 Add. Eccl. 6 291, 307 
 
 Chioopee v. Whately, 6 Allen, 508 ' 184, 217, 256 
 
 Christie's Succession, 20 La. An. 383 291, 299 
 
 Church V. Grossman, 49 Iowa, 447 124, 230, 257, 285 
 
 V. Rowell, 49 Me. 367 135, 146, 246 
 
 Clark V. Clark, 8 Cush. 385 48 
 
 V. Graham, 6 Wheat. 577 46 
 
 V. Mitchener & Likens, 2 Dutch. 207 217, 241, 285, 652, 553 
 
 V. Newmarsh, 14 S. (Se. Sess. Cas. 1st ser. 1888) 488 401 
 
 V. Robinson, 88 111. 498 874 
 
 V. Whitaker, 18 Conn. 543 374 
 
 Clarke v. The Territory, 1 Wash. Terr. 82 89, 643, 665 
 
 Clinton v. Westbrook, 38 Conn. 9 267, 260 
 
 Cockerell v. Cockerell, 2 Jur. (n. s.) 727 ; 25 L. J. \ ^h^^'JV',, ^^' ***'' ^^^' 
 PI, ran > \ I , I 4,0,4(2,41 
 
 CI, 730 ' ' ' ' { 470, 472, 481, 482, 487, 488, 
 
 ( 498, 507, 510 
 
 Cohen v. Daniels, 25 Iowa, 88 121 
 
 Colburn v. Holland, 14 Rich. Eq. 176 ... 167, 175, 200, 253^ 291, 292, 363, 
 
 ^, , . , .. . 468, 601, 502 
 
 Cole V. Cheshire, 1 Gray, 441 .... 256, 257, 548, 552, 554, 557, 560, 564 
 
 .-. Lucas, 2 La. An. 946 . . 176, 188, 199, 200, 218, 280, 285, 468, 552, 656 
 
TABLE OP CASES. XXIX 
 
 Page 
 
 Coleohureh v. Eadcliffe, 1 Str. 60 6-Jti 
 
 Collester ». Hailey, 6 Gray, 517 86, 1'23, 126, 217 
 
 Collier i: Rivaz, 2 Curteis, 855 187, 188, 189, 201, 440, 452, 482 
 
 Colton V. Longmeadow, 12 Allen, 598 127, 128, 130, 142, 143 
 
 CoWille V. Lauder, Morrison, Diet. Dec. voce ) 
 Succession, Appendix, No. 1 ; Robertson, Pera. > ... 180, 192, 194, 268 
 Sue. 166 ) 
 
 Colvin V. Reed, 55 Pa. St. 875 71, 294, 311, 315 
 
 Comm. de Trevilliers' Case, Sirey, 1860, II. 591 439 
 
 Commercial Bank v. King, 3 Rob. (La.) 243 651 
 
 Commissioners of Inland Revenue v. Gordon, 12 D. (Sc. Sess. Cas. 2d 
 
 ser. 1850) 657 166, 187, 249, 412 
 
 Commonwealth v. Emerson, 1 Pears. 204 541, 542 
 
 V. Jones, 12 Pa. St. 365 ; 7 Leg. Int. 19 90, 406, 408, 414 
 
 V. Kelleher, 115 Mass. 103 90, 511, 512 
 
 !>. Lane, 113 Mass. 458 48, 64 
 
 V. Nancrede, 32 Pa. St. 389 58 
 
 u. Smith, 5 Pa. St. 142 80 
 
 V. Walker, 4 Mass. 556 85, 257 
 
 Concord v. Rumney, 45 N. H. 423 243, 297, 369 
 
 Connolly's Case (Browning v. De Veine), Dalloz, 1853, 1. 217 439 
 
 (De Veine w. Routledge), Sirey, 1852, I. 289 439, 450 
 
 Cooper V. Galbraith, 3 Wash. C. Ct. 546 199, 501, 502, 611 
 
 V. Reynolds, 10 Wall. 308 82 
 
 Corinth v. Bradley, 51 Me. 540 257, 370, 373 
 
 Covode V. Foster, 4 Brewst. 414 374, 377, 401 
 
 Cox V. Cox, 19 Ohio St. 502 299 
 
 Craigie v. Lewin, 3 Curteis, 435 ; 7 Jur. 519 . . 187, 199, 200, 221, 223, 250, 
 
 284, 287, 288, 400, 530 
 
 Craven's Case, Sirey, 1872, I. 238 439 
 
 V. Craven, 27 Wis. 418 315 
 
 f90. 111, 121, 123, 125, 126, 
 „,,„..,,„,-„. 131, 135, 146, 164, 175, 188, 
 
 Crawford «. Wilson, 4 Barb. 504 i an) 24i; 256; 257! 325; 393, 
 
 I 401,414,418,470,477 
 
 Creuz V. Hunter, 2 Cox Cas. 242 357 
 
 Croker v. Marquis of Hertford, 4 Moore P. C. 339 160, 210 
 
 Crookenden v. Fuller, 1 Swab. & Tr. 441; 5 Jur. (n. s.) 1222; 29 L. J. 
 Prob. Cas. 1 ; 1 L. T. (n. 8.) 70 . . 148, 174, 176, 186, 217, 516, 552, 555, 562 
 
 Cross V. Black, 9 Gill & J. 198 196 
 
 V. Everts, 28 Tex. 523 92, 135, 141, 146, 155, 175, 256 
 
 Cuirana's Case, Journ. du Droit Int. Priv. 1882, p. 194 439 
 
 Culver's Appeal, 48 Conn. 304 370, 371 
 
 Cumner v. Milton, 3 Salk. 259 330 
 
 Cunningham v. Maund, 2 Kelly, 171 501, 502 
 
 Curling v. Thornton, 2 Add. Eccl. 6 159, 166, 174, 210, 217, 514 
 
 Cutler V. Cutler, 2 Brewst. 511 295 
 
 Cutter V. Davenport, 1 Pick. 81 46 
 
 Cutts V. Haskins, 9 Mass. 543 353, 355, 356, 357, 359, 371 
 
 D. 
 
 D'Abaunza's Case, Sirey, 1842, II. 372 439, 449 
 
 Da Costa's Case, Sirey, 1825-27, 579 439 
 
 Da Gama Machado's Case (Reported with Ott's Case, q.v.) 439 
 
 Dale V. Irwin, 70 111. 160 90, 123, 126, 131, 159, 241, 250, 374, 
 
 422, 423, 546 
 Dalhousie, Countess of, v. McDoual, 7 CI. & Fin. 817 ; 1 Robin. Sch. App. 
 
 475 41,50,401 
 
 Dalrymple V. Dalrymple, 2 .Hagg. Consist. 64 47,51 
 
XXX TABLE OF CASES. 
 
 Daly, 7n re, 25 Beav. 456 ; 27 L. J. Ch. 751 .291,299 
 
 JJanbury v. New Haven, 5 Conn. 584 167, 291, .309 
 
 Daniel «. Hill, 52 Ala. 430 ,■ ?°^ 
 
 V. Sullivan, 46 Ga. 277 601, 502 
 
 Danville v. Putney, 6 Vt. 512 377, 378 
 
 Darden v. Wyatt, 15 Ga. 414 341 
 
 Dauphin County v. Banks, 1 Pears. 40 . . . 123, 148, 155, 408, 411, 412, 470, 
 
 501, 502, 541, 542, 645 
 Davis V. Binion, 5 La. An. 248 560, 661 
 
 V. Davis, 30 111. 180 291, 299, 311 
 
 Dawson, Ex parte, 3 Bradf. 180 166, 321, 325, 332, 367 
 
 V. Jay, 3 De G. M. & G. 764 60, 366, 367 
 
 Dean u. Eiehmond, 5 Pick. 461 314 
 
 ( 174, 176, 187, 201, 216, 217, 
 De Bonneval v. De Bonneval, 1 Curteis, 856 . } 218, 235, 382, 476, 478, 479, 
 
 ( 514, 645, 647, 556, 567, 664 
 
 Deck V. Deck, 2 Swab. & Tr. 90 316 
 
 Dedham v. Natick, 16 Mass. 135 328, 332 
 
 De Fontaine v. De Fontaine, 5 Harr. & J. 99 note 385 
 
 Dennis v. State, 17 Fla. 389 123, 126, 408, 411 
 
 Dennysville v. Trescott, 30 Me. 470 321 
 
 Derby v. Salem, 30 Vt. 772 552, 553, 554, 556 
 
 Desesbats v. Berquier, 1 Bino. 335 22 
 
 Desmare v. United States, 93 U. S. 606 30, 36, 184, 216, 284 
 
 De Veine v. Routledge, Sirey, 1852, 1. 289 439, 460 
 
 Dexter v. Sangerville, 70 Me. 441 374 
 
 D'Herwas' Case, Sirey, 1833, I. 663 449 
 
 Diana, The, 5 C. Bob. Ad. 59 . . : .35 
 
 Dinning v. Bell, 6 Low. Can. 178 611 
 
 Di Savini v. Lousada, 18 W. R. 425 60, 366, 367 
 
 Ditson V. Ditson, 4 E. I. 87 291, 316 
 
 Doe dem. Birtwhistle v. Vardill (see Birtwhistle v. Vardill). 
 Dolphin V. Kobins, 7 H. L. Cas. 390; 3 Macq. ) „■,, „„- „(,q „nn sen qt7 
 H. L. ,163 • fi .Tiir. It^.r) 1271 • 29 T, .T, Prnh. S. ^<io,2\)\, Z99, 6W, dU4, 6U, 
 
 318 
 
 H. L. 563; 5 Jur. (n. s.) 1271 ; 29 L. J. Prob. 
 Cas. 11. (See also Robins v. Dolphin ) 
 Donaldson v. McClure, 20 D. (Sc. Sess. Cas. 2d ser. 1857) 307 .. . 180, 181, 
 
 187, 214, 216, 226, 630, 531 
 Donegal v. Donegal (see Chichester v. Donegal). 
 Don's Estate, In re, 4 Drew. 194; 3 Jur. (u. s.) 1192; 27 L J. Ch. 98; 
 
 30 L. T. 190 45, 52 
 
 D'Orl&ns, Duchess, Goods of, 1 Swab. & Tr. 253; 5 Jur. (s.s.) 104; 28 
 
 L. J. Prob. Cas. 129 .■ ... 382 
 
 Dorsey v. Dorsey, 5 Watts, 349 70, 291, 292, 311, 315 
 
 V. Kyle, 30 Md. 512 126 
 
 Dos Hermanos, The, 2 Wheat. 76 85 
 
 [■93, 119, 212, 222, 226, 227, 
 
 Doucet..Geoghegan,L.Il.9Ch.D.441 . . ] f^l; g ^^7^; Ifs/si'JI; 
 
 . 556, 662, 564 
 
 Dougherty v. Snyder, 15 S. & E. 84 291, 292 
 
 f97, 119, 146, 166, 167, 176, 
 
 Douglas .. Douglas, L.R. 12 Eq. Cas. 617. . g ^g iS', I"!,' S S 
 
 l 351,408,411,604,508,613 
 
 V. Mayor of New York, 2 Duer, 110 125, 146, 151 
 
 Dow V. Gould, 31 Cal. 629 242, 291, 411 
 
 Doyle V. Clark, 1 Flip. 536 123, 187, 199, 226, 562, 663, 556, 556 
 
 Draper v. Hatfield, 124 Mass. 53 207 
 
 Dremmler's Case, Sirey, 1844, II. 617 439,449 
 
 Drevon v. Drevon, 84 L. J. Ch. 129: 10 .Tur {^^' ^^' ^''''' ^89, 221, 222,'470, 
 (..s,,717; 10L.T.(..s.)730; 12 W R. 946 | ^4^ Msi S lit', i;r^6'4 
 
TABLE OF CASES. XXXI 
 
 Page 
 
 Drivier-Cooper's Case, Sirey, 1828, 1. 212 489 
 
 Dugat V. Markham, 29 La. R. 85 291 
 
 Dumas, Interdiction of, 31 La. An. 679 137 
 
 Dupuy V. Seymour, 64 Barb. 166 200, 468, 470 
 
 f77, 119, 135, 148, 175, 176, 
 188, 189, 200, 201, 202, 230, 
 241, 246, 392, 394, 467, 470, 
 478, 481, 482, 512, 514, 552, 
 564, 565 
 Dutcher v. Dutcher, 89 Wis. 651 " 811, 315 
 
 V. Wurtz, 53 N. Y. 556 
 
 E. 
 
 Eagan v. Lumsden, 2 Disn. 168 ; 4 W'kly L, Gaz. 161 217, 482 
 
 Easterly v. Goodwin, 36 Conn. 279 481, 482, 499, 641, 542 
 
 East Livermore v. Farmington, 74 Me. 154 541, 542, 543 
 
 Edwards v. Green, 9 La. An. 317 70 
 
 Elbers & Krafts v. United Ins. Co. 16 Johns. 128 30, 477, 481 
 
 Ellsworth ». Gouldsboro, 55 Me. 94 529, 542, 544, 646 
 
 Emden, The, 1 C. Rob. Ad. 17 29 
 
 ( 176, 187, 241, 242, 243, 384, 
 Ennis ». Smith, 14 How. 400 } 468, 476, 477, 478, 49B, 497, 
 
 i 540, 652, 564, 666, 562 
 Enohin v. Wvlie, 10 H. L. Cas. 1; 8 Jur. (u. s.) 897; 31 L. J. Ch. 402 ; 
 
 6L.T. (n.s.) 263; 10 W. E. 467 76,77 
 
 Ensor v. Graff, 43 Md. 391 200, 230, 309 
 
 Evans v. Payne, 30 La. An. 498 137, 551 
 
 Exchange Bank v. Cooper, 40 Mo. 169 604 
 
 Exeter v. Brighton, 15 Me. 58 91, 113, 114 
 
 Farlee v. Runk, 2 Cong. El. Cas. 87, 91 422 
 
 Fayette County v. Bremer County, 56 Iowa, 516 374 
 
 II. Livermore, 62 Me. 229 189 
 
 Fenton W.Livingstone, 3 Macq. H. L. 497; 33 L. T. 335 52 
 
 Fight, /n re, 39 Ala. 452 89,204 
 
 Firebrace v. Firebrace, L. R. 4 P. D. 63 166, 173, 180, 401 
 
 Fishli V. Fishli, 2 Littell, 337 315 
 
 Fiskc. Chester, 8 Gray, 506 549,665 
 
 Fiske V. Chicago, R. I. & Pae. R. R. Co. 53 Barb. 473 . . . 285, 501, 502, 641 
 Fitzgerald v. Arel, 63 Iowa, 104 121 
 
 Matter of, 2 Caines, 318 217 
 
 Fleming e. Straley, 1 Ired. 305 552 
 
 Foley'sEstate, llPhila. 47; 33Leg. Int. 117 325,344 
 
 Folger V. Slaughter, 19 La. An. 323 257, 258, 385, 542, 552 
 
 Follweiler v. Lutz, 112 Pa. St. 107 ; 2 Atl. R. 721 ; 2 Cent. R. 535 ; 
 6 East R. 528 628, 541 
 
 ^"T^Th^p!"','!-' "1*^17^^' ^^ ''"'•■ ^*^' 23L. j"4,^l|7^i;|y|o\46|Ioo; 
 J. Ch. 724 ; 2 Eq. R. 178 ^ 501_ 50^_ 5^5^ 5j^^ g^g 
 
 Forgo's Case, Sirey, 1875, I. 409; Bull, des Arrgts, May, 1875, p. 138 489, 465 
 Foster v. Eaton & Hall, 4 Humph. 346 125, 188, 246 
 
 V. Waterman, 124 Mass. 592 46, 58 
 
 Frances, The (Gillespie's Claim), 8 Cranch, 363 29 
 
 (before Story, J.) 1 Gall. 614 29 
 
 Franklin, Succession of, 7 La. An. 395 ... . 112, 175, 176, 515, 516, 520, 
 
 533, 534, 551, 664 
 Frary v. Frary, 10 N. H. 61 315 
 
xxxii TABLE OP CASES. 
 
 Page 
 Freeport «. Supervisors, 41 111. 495 .... 291,321,325,374,375,377,378 
 
 Freetown v. Taunton, 16 Mass. 52 od4, SiS 
 
 Frentzal's Case, Sirey, 1861, II. 65 439 
 
 Friendschaft (Moreira, claimant), 4 Wheat. 105 ^•- ^'■ 
 
 (WinnctuZ. claimants) 3 Wlieat. 14 30,217,287 
 
 Frost V. Brisbin, 19 Wend. 11 122, 125, 131 
 
 Fry's Election Case, 71 Pa. St. 302 . 90, 112, 113, 119, 123, 126, 246, 422, 428 
 Fuller V. Bryan, 8 Harris, 144 217 
 
 Galpin «. Page, 18 Wall. 350 82 
 
 Gambler v. Gambler, 7 Sim. 263 ; 4 L. J. Ch. 81 69 
 
 Gardner v. O'Connel, 5 La. An. 353 552, 553, 556 
 
 Garengeau's Case, Denizart verb. Dom. no. 33 490 
 
 Geils V. Geils, 1 Macq. 284; s. c. sub mm. Geils v. Dickenson, 17 Jur. 423 ; 
 
 20 Eng. L. & Eq. 1 291, 305 
 
 Gillis V. Gillis, 8 Ir. K. Eq. 597 ... . 176, 227, 235, 237, 291, 481, 482, 493, 
 
 516; 562, 565 
 Gilraan «. Oilman, 52 Me. 165 .... 111,135,148,151,174,245,247,284, 
 
 285, 519, 563 
 
 Gilmer v. Gilmer, 32 Ga. 685 501, 504 
 
 Glorer v. Glover, 18 Ala. 367 217, 285, 477 
 
 Goddard v. Sawyer, 9 Allen, 78 46 
 
 Goodman's Trusts, Be, L. K. 14 Ch. D. 619 (M. K.) 45, 53 
 
 17 id. 266 (Ct. of Appeal) 43, 45 
 
 V. Goodman, 3 Giff. 643 43, 45, 53 
 
 Goodwin v. Jones, 3 Mass. 514 73 
 
 V. McCoy, 13 Ala. 271 285 
 
 Gorham v. Canton, 5 Greenl. 266 552, 553 
 
 V. Springfield, 21 Me. 58 141, 189, 267 
 
 Gouhenant v. Cockrell, 20 Tex. 97 92, 175, 218, 256, 285 
 
 Gout V. Zimmerman, 5 Notes of Cases, 440 309, 326, 419 
 
 Graham v. Commonwealth, 51 Pa. St. 255 401 
 
 V. Public Administrator, 4 Bradf. 127 .. . . 89, 175, 188, 195, 196 
 
 V. Trimmer, 6 Kans. 230 226, 244, 245 
 
 Granby v. Amherst, 7 Mass. 1 . . 257, 402, 422, 427 
 
 Grant v. Dalliber, 11 Conn. 234 377, 378, 501 
 
 Gravillon v. Richards' Ex'rs, 13 La. E. 293 ... 148, 188, 198, 201, 230, 241 
 
 Gray Jacket, The, 5 Wall. 342 31 
 
 Green v. Van Buskirk, 5 Wall. 307 74 
 
 Greene v. Greene, 11 Pick. 410 .... 147, 148, 291, 299, 311, 501, 502, 511 
 
 w. Windham, 13 Me. 225 90, 189, 256, 260, 291, 299, 501, 504 
 
 Greenwood v. Curtis, 6 Mass. 358 48 
 
 Griffin v. Wall, 32 Ala. 149 552, 553, 554, 566 
 
 Grimmett v. Witherington, 16 Aik. 377 321, 326, 329, 340 
 
 22, 106, 108, 138, 199, 241, 
 261, 321, 325, 356, 357, 359, 
 468, 470, 478, 512, 530, 541, 
 544, 645, 647, 552, 564 
 Guildford v. Oxford, 9 Conn. 321 291, 310 
 
 Guier v. O'Daniel, 1 Binney, 349, note 
 
 H. 
 
 Hackettstown Bank v. Mitchell, 2 Dutch. 516 291 
 
 Haggart v. Morgan, 4 Sandf. 198 (affirmed 1 Seld. 427) 125 
 
 Hair v. Hair, 10 Rich. Eq. 163 293 
 
 ( 112, 119, 188, 199, 201, 246, 
 Hairston v. Hairston, 27 Miss. 704 . . . . \ 468, 470, 477, 481, 604, 615, 
 
 541, 552 
 
TABLE OP CASES. XXXIU 
 
 Page 
 Haldane v. Eckford, L. R. 8 Eq. Cas. 631 ; 21 L. J. (n. s.) 87; 17 W. E. 
 
 1059 206, 209, 214, 215, 216, 223, 258, 481, 496, 606, 533 
 
 Hall V. Hall. 25 Wia. 600 123, 135, 146, 188, 190, 251, 565 
 
 V. Lanning, 91 U. S. 160 82 
 
 Hallet V. Bassett, 100 Mass. 167 .... 86, 93, 123, 146, 175, 180, 226, 244, 
 
 470, 545, 547, 565 
 
 Halley v. Ball, 66 111. 250 67 
 
 Hallowelli;. Saco, 5Greenl. 143 90,189,257 
 
 Hamilton v. Dallas, L. R. 1 Ch. D. 257 . 159, 216, 453, 515, 552, 554, 557, 560 
 
 Hampden v. Levant, 59 Me. 557 141, 253, 257, 401 
 
 Hanberry v. Hanberry, 29 Ala. 719 291, 311 
 
 Hardy v. De Leon, 5 Tex. 211 ... . 112, 166, 167, 176, 189, 218, 246, 247, 
 
 285, 321, 329, 340, 377, 384 
 
 Hare v. Hare, 10 Tex. 355 70 
 
 Harkins v. Arnold, 46 Ga. 656 .. . 92, 166, 175, 200, 291, 309, 321, 329, 332, 
 
 336 337 338 340 
 
 Harmony, The, 2 C. Rob. Ad. 322 29, 31, SSJ 263,' 484,' 488 
 
 Harral v. Harral, 39 N. J. Eq. 279, affirming 66, 112, 159, 457 
 
 V. Wallis, 37 N. J. Eq. 458 467 
 
 Harris v. Firth, 4 Cranch C. Ct. 710 242 
 
 Harrison v. Harrison, 20 Ala. 629 31 1 
 
 Hart V. Horn, 4 Kans. 232 188, 190, 199, 326, 512 
 
 V. Lindsey, 17 N. H. 235 89, 111, 166, 167, 176, 226, 246, 321, 
 
 422, 476 
 
 Harteau v. Harteau, 14 Pick. 181 291, 307, 311, 312, 316 
 
 Hartford v. Hartland, 19 Vt. 392 269 
 
 f 124, 125, 126, 129, 130, 165, 
 „ , „ „ r. K X.- 1 Q7n J 167, 176, 187, 195, 217, 256, 
 
 Harvard College «. Gore, 5 Pick. 370 ■ • • j 257! 286, 287^ 408, 519, 530, 
 
 { 541, 546, 548 
 
 Harvey v. Ball, 32 Ind. 98 56 
 
 V. Farnie, L. R. 5 P. D. 163 (V. C.) 48, 69, 292 
 
 6id. 35 (Ct. of Appeal) 69,292,298 
 
 8App. Cas. 43 (H. L.) 69 
 
 Hawley, Matter of, 1 Daly, 631 93, 112, 123, 403, 499, 510 
 
 Hayes v. Hayes, 74 111. 312 112, 119, 188, 189, 241, 246, 516, 542 
 
 Haynes v. Rutter, 24 Pick. 242 552, 554 
 
 Heath v. Samson, 14 Beav. 441 418, 533 
 
 „ _,„,-,,.,,,„.„ ( 112, 185, 188, 241, 242, 285, 
 
 Hegeman v. Fox, 31 Barb. 475 (aflSrmmg Same \ g^^ gg'g ^g'g 4^^ g^g 553 
 
 "• Same, 1 Redf. 297) \ 666| 559! 564 
 
 Heidenbach v. Schland, 10 How. Pr. 477 247 
 
 Hellman's Will, Re, L. R. 2 Eq. Cas. 363 63 
 
 Hennen v. Hennen, 12 La. R. 190 159, 160 
 
 Henrietta v. Oxford; 2 Ohio St. 32 200, 257 
 
 Hepburn v. Skirving, 9 W. R. 764 221, 369 
 
 Hicks V. Skinner, 72 N. C. 1 137, 175, 285 
 
 Hiestand v. Kuns, 8 Blackf. 345 246, 321, 340 
 
 (111, 13.5, 146, 175, 189, 217, 
 High, Rue, AppeUant, 2 Doug. (Mich.) 515 . \ 226, 241, 246, 247, 253, 264, 
 
 i 321,393 
 
 Hill V. Fuller, 14 Me. 121 89, 260 
 
 V. Spangenberg, 4 La. An. 553 501, 602, 511, 541, 561 
 
 Hindman's Appeal, 85 Pa. St. 466 112,135,148,188,200,247,249, 
 
 286, 477, 616, 644, 548, 566 
 Hinds I). Hinds, 1 Iowa, 36 124 
 
 (-32, 176, 177, 185, 187, 200, 
 
 Hodgson V. De Beauchesne, 12 Moore P. C. 285 ; 
 33L. T. 36; 7 W. E. 397 
 
 201, 202, 206, 216, 218, 221, 
 279, 397, 399, 401, 453, 468, 
 469,477,481,482,487,492, 
 506, 508, 532, 636, 652, 655, 
 556, 558, 564 
 
XXXiv TABLE OP CASES. 
 
 Page 
 Hog V. Lashley, Morrison, Diet. Dee. 4019, 4628 ; Hobertsou, Pers. Sue. 
 
 126, 391 19, 21 
 
 Holbeoku. Leeds, 20L. J. (n. s.) (M. C.) 107; 2Eng. L. &E(i 377 
 
 Holliman, Heirs of, v. Peebles, 1 Tex. 673 . . 92, 111, 175, 188, 241, 514, 544 
 
 HoUister i-. HoUister, 6 Pa. St. 449 291, 292 
 
 Holmes v. Greene, 7 Gray, 299 90, 226, 244, 524, 555, 556 
 
 V. Eemsen, 4 Johns. Ch. 460 73 
 
 Holyoke v. Haskins, 5 Pick. 20 355, 356, 357, 359, 370, 371 
 
 Hood's Estate, 21 Pa. St. 106 ... . 80, 175, 176, 177, 227, 299, 481, 495, 
 
 510, 516, 632, 538 
 
 u. Hood, n Allen, 196 48,291 
 
 Same v. Same, 110 Mass. 463 48 
 
 Hopkins v. Hopkins, 35 N. H. 474 311 
 
 3 Mass. 158 312 
 
 Home V. Home, 9 Ired. 99 ... . 112, 118, 1 19, 175, 188, 196, 199, 241, 246 
 
 Same v. Same 477, 478, 482, 562 
 
 Hoskins v. Matthews, 8 De G. M. & G. 18 ; 2 Jur. ( 97, 180, 187, 227, 253, 388, 
 (n. s.) 196; 25 L. J. Ch. 689; 35 Eng. L. &} 395, 470, 501, 516, 554,555, 
 Eq. 532 ( 556, 557, 559, 560, 562 
 
 Hoyt V. Sprague, 103 U. S. 613 60, 366 
 
 Hubbard, iJe, 82 N. Y. 90 325 
 
 Hubgh V. R. B. Co., 6 La. An. 495 ; 54 Am. Dec. 566 15 
 
 Hulett V. Hulett, 37 Vt. 581 199, 481, 482, 489, 541, 546, 552, 565 
 
 HuU-y. Hull, 2Strob. Eq. 174 . 311 
 
 Hunt V. Hunt, 4 De G. F. & J. 221 302 
 
 Same v. Same, 72 N. T. 217 292, 306 
 
 Hyde v. Hyde, L. R. 1 P. & D. 180 47 
 
 Hylton V. Brown, 1 Wash. C. Ct. 298 201, 217, 501 
 
 I. 
 
 Ilderton v. Ilderton, 2 H. Bl. 145 47 
 
 Indian Chief, The (Ship, Johnson's Claim) 3 C. Rob. Ad. 12 . . 180, 197, 269, 
 
 272, 278 
 
 Id. (Cargo, Millar's Claim) 22 14,29,421,459,460 462 
 
 (123, 125, 126, 131, 188, '217, 
 
 Isham 11. Gibbons, 1 Bradf. 69 } 230, 285, 392, 479 513 515 
 
 ( 546, 555, 556, 561, 568 
 
 Jackson v. Jackson, 1 Johns. 424 299 316 
 
 Jamaica v. Townshend, 19 Vt. 267 . .' 248* 260 
 
 Jefferson v. Washington, 19 Me. 293 'gi^ II4' 141 
 
 Jeffreys v. Vanswartswarth, Bamardiston, 144 '. . ' 367 
 
 Jenness w. Jenness, 24 Ind. 355 ' 291 311 
 
 Jennison v. Hapgood, 10 Pick. 77, . . 217, 230, 240, 284, 386, 600, 501, 56l' 562 
 
 Johnson v. Copeland, 35 Ala. 521 338 
 
 V. Johnson, 12 Bush, 485 291 
 
 V. Smith, 43 Mo. 499 1 ! . ! " 125 
 
 T on A , no. ( 92, "199, 241. 242, 252, 291, 
 
 «. Turner, 29 Ark. 280 ) 299,321,326,329,340,477, 
 
 I 478,505 
 
 «. Twenty-one Bales, &o., 2 Paine, 601; Van ( ^°;„Pl',,l^S' l^*. 180, 189. 
 Ness, 5 ........... I 199,217,241,260,284,287, 
 
 Johnstone v. Beattie, 10 CI. & Fin. 42 . . . 56, 60, 331, 351, 859, 866, 367, 
 
 Jones «.Gerock. 6 Jones Eq. 190 887,396,536,532 
 
TABLE OP CASES. XXXV 
 
 Page 
 
 Jopp V. Wood, 4 De G. J. & S. 616 ; 11 Jur. (n. s.) 
 212 ; 12 L. T. (n. s.) 41 ; 13 W. R. 222, affirming 
 Same v. Same, 34 Beav. 88 ; 34 L. J. Cli. 211 
 
 6, 113, 119, 187, 200, 2U1, 
 202, 217, 218, 222, 230, 235, 
 246, 897, 398, 462, 479, 482, 
 486, 491, 610, 563 
 
 Joseph, The, 1 Gall. 545 " 30, 217, 287 
 
 (90, 114, 123, 126, 130, 186, 
 Judges, Opinion of the, 5 Met. 587 ... . { 140, 146, 155, 175, 188, 264, 
 
 ( 256, 284, 422, 423, 424, 431 
 
 Jadkins v. Reed, 48 Me. 386 528 
 
 Judson V. Lathrop, 1 La. An. 78 551 
 
 K. 
 
 Kashaw v. Kashaw, 3 Cal. 312 291, 311 
 
 Keegan v. Geraghty, 101 111. 26 61 
 
 Keith V. Stetter, 25 Kans. 100 185, 188, 217, 501, 565 
 
 Kellar ». Baird, 6 Heisk. 39 . . . .226, 246, 284, 286, 289, 477, 478, 482, 530 
 
 Kelley's Ex'r v. Garrett's Ex'rs, 67 Ala. 304 92, 176, 217, 325, 422 
 
 Kellogg V. Oshkosh, 14 Wis. 623 136, 393, 541, 642 
 
 V. Supervisors of Winebago Co., 42 Wis. 97 . . . 123, 126, 185, 146, 175 
 Kemna v. Brockhaus, 10 Blss. 128 83, 199, 208, 227, 230, 241, 287, 
 
 291, 476, 665 
 
 Kennedy v. Kelley, 7 Ir. Jur. 326 174 
 
 Kennedy v. Ryal, 67 N. Y. 379 (see also Ryal v. Kennedy) . 123, 135, 248, 510 
 
 Kenyon,£r parte, 5 Dillon, 385 217 
 
 Kerr ». Moon, 9 Wheat. 565 46 
 
 Kilburne v. Bennett, 3 Met. 99 266, 662, 663, 564, 667 
 
 Kilpatrick ti. Kilpatrick, Robertson, Fers. Sue. 116 19 
 
 King V. Foxwell, L. R. 3 Ch. D. 618 173, 180, 235, 2.36, 476, 481, 
 
 496, 610, 516 
 
 Kinnier v. Kinnier, 45 N. Y. 435 315 
 
 Kirby and otliers' Case, Sirey, 1853, 714 449 
 
 Kirkland i.. Whately, 4 Allen, 462 141, 175, 188, 256, 355 
 
 Kirtland w. Hotchkiss, 100 U. S. 491 88 
 
 Knowles v. The GasUght and Coke Co., 19 Wall. 58 82 
 
 Knox V. Waldoborough, 3 Greenl. 455 256, 291, 481, 482, 501 
 
 Kruse !). Erase, 25 Mu. 68 311 
 
 Laeey v. Clements, 36 Tex. 661 92, 291, 299, 505 
 
 Lacy V. Williams, 27 Mo. 280 332 
 
 Lake v. South Canaan, 87 Pa. St. 19 310 
 
 Lamar v. Micou, 112 U. S. 452 . . . . 321, 325, 327, 332, 338, 839, .340, 364 
 
 (Motion for rehearing) 114 U. S. 218 341 
 
 V. Scott, 8 Strob. 562 47 
 
 Lambe v. Smith, 16 Mees. & W. 433 113^ 125 
 
 Landis v. Walker, 15 La. An. 213 '280 
 
 Lane v. Lane, 2 Mass. 167 313 
 
 Laneuville v. Anderson, 2 Spinks, 41 ; 22 Eng. L. & Eq. 641 (see also An- 
 derson V. Laneuville) Ill, 113, 187, 235, 321, 388, 630, 631 
 
 Langdon v. Doud, 6 Allen, 423 86, 87, 114, 123, 124, 126 
 
 Lauderdale Peerage, The, L. R. 10 App. Cas, 692 176, 401 
 
 La Virginie. See Virginie. 
 
 Layne v. Pardee, 2 Swan (Tenn.), 232 175, 188 
 
 lieach V. Pillsbury, 15 N. H. 137 187, 552, 553 
 
 Le Breton v. Nouchet, 3 Mart. (La.) 60 .... , 66 
 
 Lee V. Stanley, 9 How. Pr. 272 146, 501 
 
XXXvi TABLE OF CASES. 
 
 Page 
 Leith V. Hay, Fac. Coll. 17th Jan. 1811 ; Robertson, Pers. Sue. 115 .. . 371 
 
 y. Leith, 39 N. H. 20 70 
 
 Lestapies v. Ingraham, 5 Pa. St. 71 159 
 
 Le Sueur v. Le Sueur, L. R. 1 P. D. 139 304, 305, 317 
 
 Letcher v. Moore, 1 Cong. EI. 715 422 
 
 Lethbridge's Case, Dalloz, 1874, I. 465 439 
 
 Les Trois Frferes, Stew. Ad. 1 290 
 
 Lett's Trusts, iJ«, 7 L. R. Ir. 132 67 
 
 Levy's Case, 2 Cong. El. Cas. 41 326 
 
 Lewis, Succession of, 10 La. An. 789 332,339,347,352,362 
 
 Lincoln v. Hapgood, 11 Mass. 350 257, 542, 543 
 
 Lindsay v. Murphy, 76 Va. 428 92, 185, 188, 200, 217, 241, 285, 386 
 
 Lingen v. Lingen, 45 Ala. 410 45, 56 
 
 Liscomb V. N. J. R. R. & Trans. Co., 6 Lans. 75 291, 552 
 
 Littlefield v. Brooks, 50 Me. 475 91, 111, 114, 125, 141, 164, 174, 
 
 196, 241, 256, 257 284 
 
 Livingston v. The Maryland Ins. Co., 7 Cranch, 506 29, 30 
 
 Lockhart's Trusts, 11 Ir.Jur. (n.s.) 245 197,307 
 
 Lolley's Case, 2 Russ. & Ry. 237 ; 2 CI. & Fin. 567 69, 70 
 
 Londonderry v. Andover, 28 Vt. 416 554 
 
 Long V. Ryan, 30 Gratt. 718 ... . 112, 121, 122, 123, 125, 146, 151, 188, 242 
 
 Lord Advocate v. Lament, 19 D. (Sc. Sess. Cas. 2d ser. 1857) 779 180, 216, 286 
 
 Lord V. Colvin, 4 Drew. 366 ; 5 Jur. (n. s.) 351 ; ) 99, 102, 108, 119, 177, 185, 
 
 28 L. J. Ch. 361; 7 W. R. 250; 32 L. T. [ 187,235,236,246,250,470, 
 
 377 ) 654, 560, 561 
 
 Loring v. Thorndike, 5 Allen, 257 54, 58 
 
 Love u. Cherry, 24 Iowa, 204 93, 146, 151, 204, 218 
 
 Lowndes v. Douglas, 24 D. (Sc. Sess. Cas. 2d ser. 1862) 1391 178, 180, 552, 553, 
 
 554, 555, 556, 560 
 Lower Oxford Election, Re, 11 Phila. 641 ; 32 Leg. Int. 450 217, 250, 321, 322, 
 
 340, 422, 423, 431 
 
 Lowry B.Irwin, 6 Rob. (La.) 192 200 
 
 Lubec V. Freeport, 3 Greenl. 220 ... . 322 
 
 Ludlow V. Landgrove, 42 Vt. 137 370 
 
 Lumb V. Jenkins, 100 Mass. 527 56 
 
 Lund V. Tyngsborough, 9 Cush. 36 552, 553 
 
 Luscher, Ex parte, 27 Tex. 746 89 
 
 Lyall V. Paton, 25 L. J. Ch. 746 . . . 95, 187, 191, 192, 196, 221, 481, 496, 562 
 
 Lyle V. Foreman, 1 Dall. 480 190, 196, 197 
 
 Lyman v. Fiske, 17 Pick. 231 ]25, 126, 129, 187, 256, 
 
 468, 522, 523, 547 
 Lynch's Case, Sirey, 1851, II. 791 439, 450 
 
 M. 
 
 McAfee v. Kentucky University, 7 Bush (Ky.), 135 291 
 
 McCarthy v. De Calx, 2 Russ. & M. 614 ; 2 CI. & Fin, 568 69 
 
 McClerry v. Matson, 2 Ind. 250 246 
 
 McCollum V. White, 23 Ind. 43 246, 291, 325 
 
 McConnell «. Kelley, 138Mass. 372; 19Eep. 594 207,242 
 
 McCormick v. Sullivant, 10 Wheat. 192 ' 46 
 
 McDaniel's Case, 3 Pa. L. J. 310 90, 123, 188, 254 
 
 V. King, 5 Cush. 469 128, 124, 136, 146, 254, 
 
 284, 468, 503, 504 
 
 McDermott's Appeal, 8 Watts & S. 251 70 
 
 McGehee v. Brown, 4 La. An. 186 257 
 
 Mclntyre v. Chappel, 4 Tex. 187 188, 196, 246, 286 
 
 McKenna, Succession of, 23 La. An. 369 291 299 
 
 McKowen v. McGuire, 15 La. An. 637 188, 201, 256, 511, 546' 562 
 
 McPherson v. Housel, 2 Beasl. 35 29l' 504 
 
tabIjE op cases. XXXVll 
 
 Page 
 
 Macreight, In re, L. R. 30 Ch. D. 165 401 
 
 Maddox v. State, 32 Ind. Ill 217, 321, 848 
 
 Madison v. Munroe, 42 N. J. L. 493 326 
 
 Maghee v. McAllister, 3 Ir. Cli. 604 291 
 
 Maguire v. Maguire, 2 Dana, 181 291, 299, 315 
 
 Makepeace v. Lee, cited 6 Pick. 378 625 
 
 Male V. Roberts, 3 Esp. 163 61 
 
 Malone w. Lindley, 1 Phila. 192 128 
 
 Maltass v. Maltass, 1 Robertson Eccl. 67 . . 95, 209, 419, 469, 460, 464, 465 
 
 Manchester v. Rupert, 6 Vt. 291 377 
 
 Mandeville V. Huston, 15 La. An. 281 542,648 
 
 Manning v. Manning, L. R. 2 P. & D. 223 69 
 
 Marheineke v. Grotiiaus, 72 Mo. 204 341, 355 
 
 Marryat v. Wilson, 1 Bos. & P. 430 (see also Wilson v. Marryat) ... 29, 30 
 
 Marsh v. Hutchinson, 2 Bos. & P. 226 220, 470 
 
 MarehaU v. Marshall, L. R. 5 P. D. 19 302 
 
 Mary and Susan, The, 1 Wheat. 46 29 
 
 Mason v. Fuller, 36 Conn. 160 457 
 
 V. Homer, 105 Mass. 116 291, 457 
 
 Hasten v. Masten, 15 N. H. 159 311 
 
 Matchless, The, 1 Hagg. Ad. 97 180 
 
 Maxwell v. McClure, 6 Jur. (n. b.) 407 ; 8 W. R. 1 147, 148, 181, 216, 226, 227, 
 370; 2 L. T. (n. s.) 65 ; imperfectly reported, > 244, 286, 287, 473, 477, 515, 
 3 Macq. H. L, 852 ) 519, 548, 565 
 
 Mayor of New York w. Genet, 4 Hun, 487 126 
 
 Mead v. Boxborough, 11 Cash. 362 243, 260, 549 
 
 Hears v. Sinclair, 1 W. Va. 185 321, 325, 332, 333, 338, 
 
 340, 363, 364, 365 
 
 MecklembouTg, Baron de. Case of, Le Droit, 29th July, 1856 450 
 
 Medway v. Needham, 16 Mass. 157 48 
 
 Melizet's Case, Dalloz, 1869, L 294 ; Sirey, 1869, 1. 1838 439, 457 
 
 MetcalfK. Lowther'sEx'rs, 56Ala. 312 321,325 
 
 Hette V. Mette, 1 Swab. & Tr. 416 ; 28 L. J. Prob. 117 64 
 
 Middleborough v. Rochester, 12 Mass. 363 297 
 
 Middleton v. Janverin, 2 Hagg. Cons. 437 64 
 
 MiUer's Estate, 3 Rawle, 312 180, 217, 242, 247, 284 
 
 V. Miller, 91 N. Y. 316 44, 45 
 
 V. Thompson, 2 Cong. El. Cas. 120 477 
 
 Milliken v. Pratt, 125 Mass. 374 ; . 47, 48, 66, 366 
 
 Mills i.'. Alexander, 21 Tex. 154 180, 188, 284, 287, 290, 477, 478 
 
 J 30, 36, 111, 113, 184, 187, 189, 
 MitcheU v. United States, 21 Wall. 350 .. . > 200, 216, 241, 284, 476, 477, 
 
 ) 610, 541, 646, 552 
 
 Moffatt V. MofEatt, 6 Cal. 280 315 
 
 Monson v. Fairfield, 55 Me. 117 256 
 
 V. Palmer, 8 Allen, 651 55, 200, 320, 552, 553, 554 
 
 Mooar v. Harvey, 128 Mass. 219 .... 86, 184, 217, 401, 402, 545, 548, 565 
 
 Moore v. Darrell and Budd, 4 Hagg. Eccl. 346 480, 510 
 
 ^. Wilkins, 10 N. H. 462 260 
 
 r96, 108, 113, 119, 174, 176, 
 179, 185, 189, 200, 201, 210, 
 211, 212, 216, 218, 221, 225, 
 226, 230, 235, 236, 238, 240, 
 246, 276, 387, 396, 477, 478, 
 481, 512, 613, 614, 515, 616, 
 533, 652, 554, 555, 556, 567, 
 660 
 
 Morand's Case, Sirey, 1873, II. 148 ' 4.39 
 
 Morgan v. Nunes, 54 Miss. 308 122, 125, 135, 175, 188 
 
 Morris v. Wright, Morrison, Diet. Dec. 4616, Robertson, Pers. Sue. 
 
 100. .... . 20 
 
 Morrison's Case 371 
 
 Moorhouse v. Lord, 10 H. L. Cas. 272; 9 Jur. 
 (n. s.) 677 ; 32 L. J. Ch. 295; 8 L. T. (n. s.) 
 212 ; 11 W. R. 637 
 
XXSviii TABLE OP CASES. 
 
 Page 
 
 Mostyn v. Fabrigas, Cowp. 177 416 
 
 Moultrie v. Hunt, 23 N. Y. 394 77 
 
 f 43, 49, 50, 53, 174, 176, 187, 
 Munro v. Munro, 7 CI. & Fin. 842; 1 Robin. 
 Soil. App. 492 ^ 
 
 193,200,217,234,235,269, 
 277, 286, 477, 493, 508, 513, 
 514, 515, 554, 557, 560 
 
 V. Saunders, 6 Bligh N. E. 468 49 
 
 Munroe v. Douglas, 5 Madd. 379 187, 191, 192, 193, 194, 
 
 195, 266, 268, 271 
 
 V. Jaclcson, 2 Cong. El. Gas. 101 375 
 
 Musson V. Trigg, 51 Miss. 172 67 
 
 Myers' Case, Sirey, 1872, II. 313 439 
 
 N. 
 
 Nelson v. Botts, 16 La. R. 596 190, 551 
 
 Neptunus, Tlie, 6 C. Rob. Ad. 403 29 
 
 New Albany, City of, v. Meekin, 56 Am. Dec. 522 88 
 
 New Orleans, City of, v. Shepherd, 10 La. An. 268 . . 515, 516, 520, 561, 564 
 
 Niboyet v. Niboyet, L. R. 4 P. D. 1 39, 68, 69, 291, 419 
 
 Nixon V. Palmer, 10 Barb. 175 185, 217, 477 
 
 Northfield v. Vershire, 33 Vt. 110 .* 377 
 
 North Yarmouth v. West Gardiner, 58 Me. 207 114, 125, 141 
 
 Nugent V. Bates, 51 Iowa, 77 185, 217, 501, 504 
 
 V. Vetzera, L. E. 2 Eq. Cas. 704 60, 366, 367 
 
 O. 
 
 Ocean, The, 5 C. Rob. 90 . 35, 197, 205, 279 
 
 Olivarez's Case, Le Droit, Oct. 11, 1854 439, 449, 450 
 
 Ommanney v. Bingham, Robertson, Pers. Sue. 152, 468 . 21, 148, 149, 150, 230, 
 
 277, 397, 470, 501, 530, 531 
 
 Onslow's Case, Dalloz, 1836, IL 57; Sirey, 1836, IL 374 4-39,449 
 
 ( 114, 125, 126, 129, 131, 135, 
 
 Otis V. Boston, 12 Cush. 44 ] 146, 153, 155, 180, 196, 199, 
 
 ( 256, 257 
 
 Ott's Case, Sirey, 1868, II. 193 ; 1869, L 135 ; Bull, des Arrets, Cass. Jan. 
 
 1869, p. 17 111,439 
 
 Oxford V. Bethany, 19 Conn. 229 832, 338 
 
 V. Rumney, 3 N. H. 331 373 
 
 P. 
 
 Parker City v. DuBois, 8 Cent. R. 207 261, 262 
 
 Parsonfield v. Kennebunkport, 4 Greenl. 47 90 
 
 V. Perkins, 2 Greenl. 411 90 256 
 
 Parsons v. Bangor, 61 Me. 457 187, 199, 200, 504, 505, 565 
 
 Pate D. Pate, 6 Mo. App. 49 3U 
 
 Patience, In re, L. R. 29 Ch. D. 976 176, 401 
 
 Patten, Goods of, 6 Jur. (n. s.) 151 325| 401 
 
 Patterson v. Gaines, 6 How. 550 40 64 
 
 Paulding's Will, 1 Tuck. 47 . . .' ' 299 306 
 
 Pawlet V. Rutland, Bray. 175 '....' 377 
 
 Payne v. Dunham, 29 111. 125 "... 369 
 
 Pearce f. State, 1 Sneed (Tenn.), 68 '246, 501, 503,' 504, 505 
 
 Pearl v. Hansborough, 9 Humph. 426 67 
 
 Pedan v. Eobb's Adm'r, 8 Ohio, 227 !.'... 356 357 
 
TABLE OF CASES. XXXIX 
 
 Page 
 Penfleld v. Chesapeake, &c. R. R. Co. 29 Fed. Rep. 494 . . 189, 190, 503, 604 
 
 Penley v. Waterhouse, 1 Iowa, 498 218, 501 
 
 Fennoyer v. Neff, 95 U. S. 714 82 
 
 Pennsylvania v. Ravenel, 21 How. 103 80,291,562 
 
 People 1). Holden, 28 Gal. 123 412, 413 
 
 V. Peralta, 4 Cal. 175 89, 188, 201 
 
 Perkins v. Davis, 109 Mass. 239 246, 654 
 
 Pfoutz 0. Comford, 36 Pa. St. 420 85, 188, 250, 285 
 
 Phillips V. Gregg, 10 Watts, 158 68, 64 
 
 «. Kingsfleld, 19 Me. 376 141,257 
 
 Phipps, Re, 2 Curteia, 368 401 
 
 Phcenix, The, 5 C. Rob. Ad. 21 30 
 
 Pilson V. Bushong, 29 Gratt. 229 185, 188, 200, 217, 247, 285 
 
 Pipon V. Pipon, Ambler, 26 ; Ridg. 230 19, 20 
 
 Pitt 1-. Pitt, 4 Macq. H. L. 627; 10 Jur. (k. s.) 735; 12 W. R. 1089; 10 
 
 L. J. (N. 8.) 626 93, 217, 230, 235, 385, 468, 513 
 
 Pittsfield V. Detroit, 63 Me. 442 374, 877 
 
 Piatt's Appeal, 80 Pa. St. 501 311 
 
 V. Attorney-General, L. R. 3 App. Cas. 336 227, 235, 253, 514, 
 
 515, 516, 532 
 
 Plummer v. Brandon, 5 Ired. Eq. 190 175, 176, 188, 199, 217, 
 
 230, 241, 250, 501 
 
 Polydore v. Prince, 1 Ware, 402 47 
 
 Pond V. Vermont Valley R. R. Co., 12 Blatchf. 280 208 
 
 Poniatowska's (Princess) Case, Sirey, 1811, 11.446; Dalloz, Rec. Alph. 
 
 rU. 348 ; Jour, du Pal. t. 32, p. 371 439, 449 
 
 Poppenhausen v. The India Rubber Comb Co., 11 L. Rec. 696 291 
 
 Porterfleld v. Augusta, 67 Me. 556 401, 504 
 
 Portland, The, 3 C. Rob. Ad. 41 31 
 
 Potinger v. Wightman, 3 Meriv. 67 330, 332, 333, 337, 351, 
 
 353, 356, 357, 359 
 
 Potter V. Titcomb, 22 Me. 300 47 
 
 Powell V. Powell, 29 Vt. 148 293 
 
 Powers V. Mortee, 4 Am. L. Reg. 427 166, 167, 175, 321, 329, 
 
 332 333 
 
 Prentiss v. Barton, 1 Brock, 389 83, 166, 174, 180,'241, 
 
 284, 470, 477, 552 
 
 President, The, 5 C. Rob. Ad. 277 35, 189, 279 
 
 President of the United States v. Drummond, 3 Beav. 449 ; 10 Jur. (ir. s.) 
 
 533; 32 L.J. Ch. 501 397 
 
 Prieto V. Duncan, 22 111. 26 500, 501, 504 
 
 PrizeCases, The, 2Black. (U. S.) 635 30 
 
 Prosser v. Warner, 47 Vt. 667 315 
 
 Putnam v. Johnson, 10 Mass. 488 . . 90, 103, 106, 107, 114, 247, 261, 422, 427 
 
 w. Putnam, 8 Pick. 433 90,221 
 
 Quinby v. Duncan, 4 Harr. (Del.) 383 175, 477 
 
 R. 
 
 Eaffenel, In Goods of, 3 Swab. & Tr. 49 ; 9 Jur. (n. s.) 386 ; 32 L. J. Prob. 
 
 Cas. 203 ; 11 W. R. 649; 8 L. T. (n. s.) 211 34, 197, 205, 287 
 
 Rawson v. Haigh, 2 Bing. 99 552, 653, 554 
 
 Read v. Bertrand, 4 Wash. C. Ct. 514 217, 230, 241, 470 
 
 Reading v. Westport, 19 Conn. 561 377 
 
 Reed's Appeal, 71 Pa. St. 378 85, 123, 180, 188, 250, 284, 285, 289 
 
 Reed v. Ketch, 1 Phila. 106 202, 504, 505 
 
xl TABLE OF CASES. 
 
 Page 
 
 Reeder v. Holcomb, 105 Mass. 93 552, 553, 565 
 
 Reel V. Elder, 62 Pa. St. 308 71, 311 
 
 Regina v. Stapleton, 1 Ell. & B. 766 122 
 
 RegistryLists, /rare, lOPhila. 213; 31 Leg. Int. 332 375 
 
 Republic v. Skidmore, 2 Tex. 261 230 
 
 V. Young, Dallam, 464 92, 199, 252, 253, 291, 299, 505 
 
 Rex V. Barton Turfe, Burr. Sett. Cas. 49 330 
 
 V. Brighton, 5 T. R. 180 526 
 
 V. Oulton, Burr. Sett. Cas. 64 330 
 
 V. Ringwood, 1 Maule & S. 381 526 
 
 V. St. Olaves, 1 Str. 51 526 
 
 Ricardw. Kimball, 5 Rob. (La.) 142 561 
 
 Rice, Matter of, 7 Daly, 22 422, 431 
 
 Richardson v. Richardson, 8 Mass. 153 312 
 
 Richmond v. Vassalborough, 5 Greenl. 396 90, 470, 504 
 
 Rieffel's Case, Sirey, 1873, IL 265 439 
 
 Riggs V. Andrews, 8 Ala. 628 501 
 
 Ringgold V. Barley, 5 Md. 186 190, 196, 200, 201, 226, 285 
 
 Risewick v. Davis, 19 Md. 82 125 
 
 Robert! & Wife v. Methodist Book Concern, 1 Daly, 3 175, 501 
 
 Roberts' Will, Re Catharine, 8 Paige, 519 . . 93, 217, 241, 287, 552, 554, 557 
 
 V. Cannon, 4 Dev. & B. 256 90, 113. 123 
 
 V. Walker, 18 Ga. 5 322 
 
 Robins v. Dolphin, 1 Swab. & Tr. 37; 4 Jur. (n. s.) 187 (see also Dolphin 
 
 V. Robins) 187 
 
 w. Weeks, 5 Mart. (n. s.) 379 . 347 
 
 Robinson v. Blakely, 4 Rich. 586 554 
 
 Rogers v. The Arnado, 1 Newb. 400 30 
 
 Roosevelt v. Kellogg, 20 Johns. 208 130 
 
 Rose V. Ross, 4 Wils. & S. 37 ; 5 S. (Sc. Sess. Cas. 1st ser.) 618 . . 41, 49, 50 
 
 Ross V. Ross, 103 Mass. 575 188, 250 
 
 Same v. Same, 129 Mass. 243 38, 39, 40, 44, 45, 46, 344 
 
 Rowlands Son's Case, Sirey, 1844, 746; 1848, 417 450 
 
 Royalton tJ. West Fairlee, 11 Vt. 438 310 
 
 Ruding V. Smith, 2 Hagg. Cons. 371 63 
 
 Rue High, Appellant (see High). 
 
 Rumney v. Camptown, 10 N. H. 567 201, 256, 257, 386, 501 
 
 i 92 159 175 180 199 201 
 
 Russell V. Randolph, 11 Tex, 460 ) 227, 252, 253, 287, 291, 299] 
 
 t 321, 505 
 
 Ryal ». Kennedy, 40 N. y. Superior Ct. 34 (see also Kennedy w.Ryal) . . 126, 
 
 146. 247, 248, 325, 332, 333, 338, 477 
 Ryan v. Malo, 12 Low. Can. 8 408 
 
 S. 
 
 Sackett's Case, 1 Mass. 58 217 
 
 St. Albans v. Huntington, unreported ; cited in Manchester v. Rupert, q. v. 377 
 
 St. George v. Catharine, 1 Sett. Cas. 72 330 
 
 Salem v. Lynn, 13 Met. 544 552, 553, 554 
 
 Sanders v. Getchell, 76 Me. 158 422, 423, 429, 430 
 
 Sanderson v. Ralston, 20 La. An. 312 . . 188, 299, 468, 470, 504, 541, 549, 561 
 
 San Jose Indiano, The, 2 Gall. 268 31 
 
 Santissima Trinidad, The, 7 Wheat. 283 37 
 
 Saul w. His Creditors, 5 Mart. (n. s.) 569 62,66 
 
 Sawtell V. Sawtell, 17 Conn. 284 315 
 
 Schaferw.Eneu, 54Pa. St. .304 58 
 
 Schibsby v. Westenholz, L. R. 6 Q. B. 154 82 
 
 Scholes V. The Murray Iron Works Co., 44 Iowa, 190 604 
 
 Schonwald u. Schonwald, 2 Jones Eq. 367 311 
 
TABLE OF CASES. xli 
 
 Page 
 
 ( 132, 291, 292, 821, 325, 332, 
 
 School Directors v. James, 2 Watts & S. 568 . \ 388, 335, 837, 388, 389, 340, 
 
 ( 352, 859, 861, 368 
 Scott, Matter of, 1 Daly, 534 ... 37, 123, 164, 166, 284, 288, 402, 403, 405, 
 
 501, 537 
 
 V. Key, 11 La. An. 232 45, 55 
 
 V. Schwartz, Corayn R. 677 19 
 
 Scrimshire v. Scrimshire, 2 Hagg. Cons. 395 64 
 
 Sears !i. Boston, 1 Met. 250 129, 217, 230, 241, 401, 402, 468, 478 
 
 Sedgwick v. Laflin, 10 Allen, 430 46 
 
 Seiter v. Straub, 1 Demarest, 264 321, 354, 363 
 
 Sewall V. Roberts, 115 Mass. 262 58 
 
 V. Sewall, 122 Mass. 156 48, 547, 549 
 
 Shackell v. Shaekell (cited in Whitcorab v. Whitcomb, q. v.) ... 291, 307 
 Sharpe v. Crispin, L. R. 1 P. & D. 611 ; 88 L. J. Prob. 17 ; 20 L. T. (n. s.) 41 
 
 178, 325, 333, 369, 872, 414, 418, 419, 420, 468, 470 
 
 V. Orde, 8 S. (Sc. Sess. Cas. 1st Ser. 1829) 49 377, 386 
 
 Shattuck V. Maynard, 3 N. H. 123 89, 121, 501 
 
 Shaw V. Attorney-General, L. R. 2 P. & D. 15B 69, 70 
 
 V. Gould, L. R. 3 H. L. 55 52, 53, 69 
 
 V. Shaw, 98 Mass. 158 . . 113, 123, 124, 130, 142, 188, 196, 230, 285, 811 
 
 Shearer v. Clay, 1 Littell, 260 554 
 
 Shedden v. Patrick, 5 Paton, 194; 1 Macq. H. L. 535 48, 49, 53, 56 
 
 Shelton v. Tiffin, 6 How. 163 83, 498, 510, 516, 541, 544, 555 
 
 Shepherd B. Cassiday, 20 Tex. 24 93,135,141,146,155,256,285 
 
 Sherwood ». Judd, 8 Bradf. 267 402, 405, 555, 556 
 
 Short's Estate, 16 Pa. St. 68 80 
 
 Shreck v. Shreck, 32 Tex. 578 315 
 
 Sill V. Worswick, 1 H. Bl. 665 72 
 
 Simonin v. Mallac, 2 Swab. & Tr. 67 ; 6 Jur. (n. s ) 561 ; 29 L. J. Mat. 
 
 Cas. 97 47 
 
 Skottowe V. Young, L. R. 11 Eq. Cas. 474 52, 58 
 
 Sleeper v. Paige, 15 Gray, 349 226, 242, 243 
 
 (94, 113, 119, 151, 175, 190, 
 
 Smith V. Croom, 7 Fla. 81 \ 196, 201, 246, 251, 501, 504, 
 
 { 510, 541, 555, 561 
 V. Dalton, 1 Cin. Superior Ct. R. 150 .... 188, 190, 201, 217, 250 
 
 V. Derr's Adm'rs, 34 Pa. St. 126 .45, 46, 56 
 
 V. Goods of, 2 Robertson Eccl. 332 412 
 
 V. Kelley, 23 Miss. 167 55 
 
 V. Moorehead, 6 Jones Eq. 360 291, 311 
 
 V. People, 44 111. 16 217, 2.50 
 
 V. Smith, 4 Greene (Iowa), 266 112, 217, 230 
 
 Snelle Zeylder, The, The Lords, 1783, cited 3 C. Rob. Ad. 12 . . . 197, 278 
 
 f 20, 93, 98, 147, 148, 149, 165, 
 166, 174, 175, 205, 225, 230, 
 254, 278, 821, 325, 355, 397, 
 480, 513, 514, 515, 518, 519, 
 580, 531, 557 
 
 Sottomayer v. De Barros, L. R. 3 P. D. 1 62, 64 
 
 Same v. Same, L. R. 5 P. D. 94 47, 64 
 
 Specht's Case, Dalloz, 1872, II. 255 ; Sirey, 1875, 1. 19 ... . 439, 455, 456 
 
 ( 160, 210, 219, 220, 249, 287, 
 Stanley v. Bernes, 3 Hagg. Eccl. 373 . ■ ■ { 475, 476, 481, 482, 486, 487, 
 
 i 494, 507, 538, 555, 556 
 
 Stansbury v. Arkwright, 5 C. & P. 575 552 
 
 State V. Adams, 45 Iowa, 99 . . 399 
 
 t>. Aldrich, 14 R. 1.171 113,123,541 
 
 V. Daniels, 44 N. H. 383 422 
 
 «. Dodge County, 56 Wis. 79 112,123,230,246,257,262 
 
 .Ba;reZ.Fnselieri'. Judge of Probates, 2 Rob. (La.) 160 347 
 
 Same w. Same, id. 418 347 
 
 Somerville v. SomervlUe, 5 Ves. Jr. 750 
 
Xlii TABLE OP CASES. 
 
 Page 
 
 State, Bx rel. Tilghman v. Judge of Probates, 2 Rob. (La.) 449 . . . . 200 
 
 « rrest,4Harr. (Del.)558 . . . .90,146,188,190,200,226,227,254, 
 
 ' 470, 474, 510 
 
 V. Graham, 39 Ala. 454 (see Re Toner) 287, 398 
 
 i>. Griffey,- 6 Neb. 161 541 
 
 V. Grizzard, 89 N. C. 115 ; 18 Eep. 375 . 90, 112, 12.3, 135, 137, 217, 408 
 
 V. Groome, 10 Iowa, 308 89, 226, 501, 641, 549 
 
 V. Hallett, 8 Ala. 159 . . ... 90, 188, 216, 230, 251, 252, 505, 516 
 
 V. Judge, 13 Ala. 805 90, 217, 257 
 
 V. Minnick, 15 Iowa, 123 280, 246 
 
 V. Poydras, 9 La. An. 167 137 
 
 V. Ross, 23 N. J. L. (3 Zab.) 517 . . 125, 126, 131, 149, 151, 155, 241, 541 
 
 V. Schlachter, Phil. N. C. 520 315 
 
 V. Steele, 33 La. 910 151, 155, 176, 256, 541, 546 
 
 State Tax on Foreign-held Bonds, 16 Wall. 300 88 
 
 Steer, In re, 3 Hurl. & Nor. 594 ... . 148, 215, 216, 219, 227, 238, 555, 563 
 
 Stephens v. McFarland, 8 Ir. Eq. 444 325 
 
 Succession of, 19 La. 449 342, 347 
 
 Stevenson v. Masson, L. R. 17 Eq. Cas. 78 505, 514, 616, 536 
 
 V. SuUivant, 5 Wheat. 207 53 
 
 Still V. Woodville, 38 Miss. 646 393, 394 
 
 Stockton V. Staples, 66 Me. 197 187, 199, 241, 256, 565 
 
 Stoddert v. Ward, 31 Md. 563 257 
 
 Stoughton & Peck v. Hill, 3 Woods, 404 185 
 
 Stover.'Matter of, 4 Redf. 82 175, 188 
 
 Strathmore Peerage, 4 Wils. & S. 89; 6Paton, 645 49 
 
 Stratton v. Brigham, 2 Sneed (Teun.), 420 . . . . 112, 123, 126, 132, 226, 248, 
 
 280, 261 
 
 Strong V. Farmington, 74 Me. 46 369, 374 
 
 Stuart V. Marquis of Bute, 9 H L. Cas. 460 60, 366 
 
 Sussman's Case, Dalloz, 1872, II. 66 439 
 
 Swaney v. Hutchins, 16 Neb. 266 199, 227, 255, 291, 505 
 
 Tabbs V. Bendelack, 4 Esp. 108 501 
 
 Talbot V. Jansen, 3 Dall. 123 37 
 
 Talmadge Adm'r v. Talmadge, 66 Ala. 199 91, 92, 123, 197, 
 
 261, 285, 506 
 
 Tanner v. King, 11 La. R. 175 107, 160, 188, 217, 256 
 
 Taunton v. Plymouth, 15 Mass. 203 324 
 
 Taylor v. Reading, 4 Brewst. 439 123, 200, 241 
 
 Tazewell v. Davenport, 4 111. 197 123, 126, 131 
 
 Thayer v. Boston, 124 Mass. 132 114, 207, 520, 625, 565 
 
 Thirty Hogsheads of Sugar v. Boyle, 9 Cranch, 191 31 
 
 Thomaston v. St. George, 17 Me. (5 Shep.) 117 552, 555 
 
 Thompson v. Advocate General, 12 CI. & Fin. 1 19 
 
 V. Ketcham, 8 Johns. 190 62 
 
 Matter of, 18 Wend. 43 Ill, 125 
 
 V. Whitman, 18 Wall. 467 82 
 
 )93, 123, 126, 129, 130, 135, 
 Thorndike v. Boston, 1 Met. 242 . . . > 146, 176, 249, 285, 467, 662, 
 
 ) 554, 666, 560 
 
 Thome v. Watkins, 2 Ves. Sr. 35 19 
 
 Thornton's Case, Sirey, 1825-27, 442 ; Dalloz, 1827, H. 49 : Jour, du Pal., 
 
 Nov. 7, 1826 .439 
 
 Tillman v. Moseley, 14 La. An. 710 561 
 
 Tobin V. Walkenshaw, 1 McAU. 186 552, 856 
 
 Tolen V. Tolen, 2 Blackf. 407 816 
 
 Toner, 7n re, 39 Ala. 454 (see also State B. Graham) ....'. 89 477, 478 
 Tootal's Trusts, Be, L. R. 23 Ch. D. 532 221, 460 
 
TABLE OP CASES. 
 
 xliii 
 
 Page 
 
 Topsham v. Lewiston, 74 Me. 236 377, 378, 601 
 
 Tovey v. Lindsay, 1 Dow, 117 401 
 
 Townshend v. Kendall, 4 Minn. 412 356 
 
 Trammell v. Trammell, 20 Tex. 406 176, 323, 329, 340 
 
 Tremont v. Mt. Desert, 36 Me. 390 " .... 373 
 
 Tucker v. Field, 6 Redf. 139 176, 467 
 
 Tulloh V. TuUoh, 23 D. (Sc. Sess. Cas. 2d ser. 1861) 639 291 
 
 Turner v. Buckfield, 3 Greenl. 229 261 
 
 Tyler v. Murray, 57 Md. 418 123, 200, 408, 411 
 
 U. 
 
 Udny V. Udny, L. E. Sch. App. 441 ; 7 Macph 
 (Sc. Sess. Cas. 3d ser. 1869) 89 ; (In Court of ■ 
 Session, 5 Macph. 164) 
 
 r 38, 43, 50, 53, 62, 93, 95, 97, 
 111, 135, 136, 146, 149, 165, 
 164, 166, 167, 171, 172, 173, 
 174, 180, 187, 194, 195, 196, 
 197, 204, 209, 211, 212, 213, 
 226, 229, 230, 235, 2.36, 237, 
 240, 253, 265 et seq., 289, 
 380, 386, 386, 394, 408, 419, 
 455, 515, 652, 567 
 
 Union v. Plainfield, 39 Conn. 563 ~ 554 
 
 United States v. Crosby, 7 Cranch, 115 46 
 
 V. Farragut, 22 Wall. 406 30 
 
 V. Guillem, 11 How. 47 .... 30 
 
 V. The Penelope, 2 Pet. Ad. 438 30, 187, 199, 217, 230, 241 
 
 V. Thorpe, 2 Bond, 340 89, 217, 230, 501, 502, 541 
 
 President of, v. Drummond (see President). 
 Upton V. Northbridge, 15 Mass. 237 359, 373 
 
 Vanderpoel v. O'Hanlon, 53 Iowa, 246 ; 36 Am. Eep. 216 ... 90, 188, 196. 
 
 218, 422 
 
 Van Storch w. Griffln, 71 Pa. St. 240 311 
 
 Van Voorhis v. Brintnal, 86 N. Y. 18 40, 64 
 
 Veile i>. Koch, 27 111. 129 230 
 
 Venable v. Paulding, 19 Minn. 488 114, 123, 226, 242, 244, 
 
 408, 411, 541, 565 
 
 Venus, The, 8 Cranch, 253 
 
 Verret v. BonTillain, 33 La. An. 1304 
 Vigilantia, The, 1 C. Rob. Ad. 1 . 
 Villere v. Butman, 23 La. An. 516 . 
 Virginie, La, 5 C Rob. Ad. 99 . . 
 Vischer v. Vischer, 1 2 Barb. 640 . 
 Von Glahn v. Varenne, 1 Dill. 515 
 Von Hoffman v. Ward, 4 Redf. 244 
 Vrow Anna Catharina, The, 5 C. Rob, 
 
 Ad. 161 
 
 29, 81, 85, 111, 180, 197, 199, 
 201, 241, 242, 250, 283, 284, 
 289, 470, 476 
 , 199, 470, 552, 555, 556 
 29 31 
 , ". '. '. '. 522, '542, 549 
 
 180,269 
 
 188, 199, 241, 306, 342 
 
 209 
 
 135, 148, 188, 327, 328 
 31 
 
 W. 
 
 Walcot V. Botfield, Kay, 534 ; 18 Jur. 570 135, 166, 280 
 
 Walker, In re, 1 Lowell, 237 84, 180, 283, 284, 288, 289 
 
 V. Barrelli, 32 La. An. 467 137 
 
 V. Walker, 1 Mo. App. 404 218 
 
 Wallace's Case, Robertson, Pers. Sue. 201 422, 424, 432, 608 
 
xliv TABLE OF CASES. 
 
 Wallace v. Attorney-General, L. R. 1 Ch. 1 ' . . . . 53 
 
 Waller v. Lea, 8 La. R. 213 551 
 
 Walpole V. Marblehead, 8 Cush. 528 338 
 
 Ward V. Oxford, 8 Pick. 476 561, 562, 563 
 
 Warren v. Hofer, 13 Ind. 167 321, 340 
 
 V. Thomason, 43 Me. 406 91, 114, 125, 187 
 
 Warrender v. Warrender, 2 CI. & Fin. 488 ; 9 BUgli, 89 . 47, 69, 291, 292, 299, 
 
 300, 307, 309, 334, 504 
 Washington v. Beaver, 3 Watts & S. 548 167, 322, 369, 373 
 
 V. Kent, 38 Conn. 249 377 
 
 Washington County v. Mahaska County, 47 Iowa, 57 374 
 
 Waterborough v. Newfield, 8 Greenl. 203 90, 256 
 
 Watson V. Simpson, 13 La. An. 337 556 
 
 Wauchope u. Wauchope, 4 Rettie (Sc. Sess. Cas. 4th ser.), 945 .... 221 
 
 Wayne v. Greene, 21 Me. 357 201, 257, 467, 552, 556, 558 
 
 Wayne Township v. Jersey Shore, 81 Pa. St. (32 Smith), 264 167 
 
 Weaver v. Norwood, 59 Miss. 665 125 
 
 Weld V. Boston, 126 Mass. 166 ... . 624, 541, 546, 550, 560, 561, 562, 5B5 
 
 Wellesley v. Wellesley, 2 Bligh (n. b.), 124 ; 1 Dow & CI. 152 357 
 
 Wells V. Kennebunkport, 8 Greenl. 200 322 
 
 V. People, 44 111. 40 504, 505 
 
 Wesson v. Marshall, 13 La. An. 436 200 
 
 West, Goods of, 6 Jur. (n. s.) 831 201, 401, 493, 562 
 
 West Boylston u. Sterling, 17 Pick. 126 S49 
 
 West Cambridge v. Lexington, 1 Pick. 506 .... 48 
 
 Weston V. Weston, 14 Johns. 428 498, 504, 515 
 
 Wheeler v. Burrow, 18 Ind. 14 32a, 325 
 
 V. HoUis, 19 Tex. 522 337, 359, 363 
 
 177, 96, 98, 99, 108, 113, 119, 
 185, 187, 221, 225, 226, 234, 
 237, 246, 250, 513, 514, 533, 
 554, 663 
 
 Whitcomb v. Whitcomb, 2 Curteis, 351 291, 307 
 
 93, 111, 113, 135, 147, 148, 
 166, 174, 180, 187, 189, 199, 
 201, 202, 209, 217, 219, 241, 
 242, 246, 288, 383, 468, 481, 
 482, 490 
 
 V. Burnley, 20 How. 235 384 
 
 V. Howard, 52 Barb. 294 358, 368, 422, 510 
 
 V. Repton, 3 Curteis, 818 401 
 
 V. White, 3 Head, 404 93, 99, 246, 515 
 
 Whitney v. Sherborn, 12 Allen, 111 141, 188, 261 
 
 Wiggin, Ex parte, 1 Bank. Reg. 90 (s. c. as In re Walker, q. v.) 
 
 Wilbraham v. Ludlow, 99 Mass. 687 131 
 
 Wilkins v. Marshall, 80 111. 14 201 250 
 
 William Bagaley, The, 5 Wall. 377 30 
 
 Williams v. Dormer, 2 Robertson Eccl. 505; 16 Jur. 366: 9 Eng. L. & Eq. 
 
 598 .... 304 
 
 V. Henderson, 18 La. R. 557 250, 262, 502 
 
 V. Roxbury, 12 Gray, 21 197^ 261 
 
 V. Saunders, 5 Cold. 60 188, 217, 29l] 401 
 
 V. Whiting, 11 Mass. 424 ' 257] 60l', 502 
 
 Williamson v. Parisien, 1 Johns. Ch. 389 227 287 495 504 616 
 
 Williamsport t>. Eldred, 84 Pa. St. 429 '. . ' 307 
 
 Wilmington v. Burlington, 4 Pick. 174 454 
 
 Wilson's Trusts, Re, L. R. 1 Eq. Cas. 247 '. 53 
 
 w. Marryat, 8 T.R. 31 (see also Marryatu. Wilson) ' , 29 
 
 V. Terry, 11 Allen, 206 141, 188, 246, 256, 262 
 
 Same v. Same, 9 id. 214 552, 553, 662 
 
 Wilson V. Wilson, L. R. 2 P. & n. 435 69, 235, 236, 566 
 
 Same u. Same, 1 H. L. Cas. 538; 5 id. 40 302 
 
 White V. Brown, 1 Wall. Jr. C. Ct. 217 
 
TABLE OF CASES. xlv 
 
 Page 
 
 Winn, Succession of, 3 Rob. (La.) 303 339 
 
 Winter Iron Works v. Toy, 12 La. An. 200 200 
 
 Winton v. Palmoutli, 16 Me. 479 109 
 
 Wisoasset v. Waldoborough, 3 Greenl. 388 373 
 
 Wood V. Fitzgerald, 3 Oregon, 568 412, 413 
 
 V. Wood, 5 Paige, 596 357, 358 
 
 Woodend, Inhabitants of, v. Inhabitants of Paulspury, 2 Ld. Eay. 1473, 
 
 Stra. 776 330 
 
 Woodworth v. St. Paul, M. & M. R'y Co. 18 Fed. Rep. 282 .. . 408, 411, 541, 
 
 552, 553, 565 
 
 V. Spring, 4 Allen, 821 60, 821, 866, 367 
 
 Wooldridge v. Wilkins, 3 How. (Miss.) 360 419, 555 
 
 Wright's Trusts, In re, 2K. & J. 595; 2 Jur. (n. s.) 465 ; 25 L. J. Ch. 621 43, 53 
 
 V. Boston, 126 Mass. 161 552, 560, 561, 562, 563, 565 
 
 V. Remington, 12 Vroom, 48 47 
 
 D.Wright, 24 Mich. 180 315 
 
 Wrigley, Matter of, 8 Wend. 134 Ill, 125, 130, 230, 284 
 
 Wylie». Laye, 12S. (Sc. Sess. Cas. Istser. 1834) 927 166 
 
 Y. 
 
 Yarmouth v. North Yarmouth, 44 Me. 352 374 
 
 Yelvertons.Yelverton.l Swab. &Tr. 574; 29L. J. (Mat. Cas.) 34; IL.T. 
 
 (n. s.) 194 151, 818, 401 
 
 Yerkes v. Brown, 10 La. An. 94 190, 551 
 
 Yonkey v. State, 27 Ind. 236 90, 201, 217, 408, 411, 541, 546 
 
 Yule V. Yule, 10 N. J. Eq. (2 Stock.) 138 299 
 
THE LAW OF DOMICIL. 
 
THE LAW OF DOMICIL. 
 
 CHAPTER I. 
 
 INTRODUCTION. 
 
 § 1. Municipal Organization of the Roman World. — We are 
 indebted to the Civil Law for both the term " domicil " and the 
 legal idea which it represents. The organization and polity 
 of the Roman world were pre-eminently municipal.^ In its 
 early history we find Rome, itself a walled city, having an 
 organization and institutions suitable to the requirements of 
 municipal life, surrounded by numerous independent states, 
 composed in their turn either of single cities or confedera- 
 tions of cities. As these fell one by one under the sway of 
 their ambitious and insatiate neighbor, either by treaty or 
 conquest, they experienced treatment differing according to 
 circumstances. Some, becoming allies, merely or mainly 
 recognized the military hegemony of Rome, and retained, at 
 least for a time, their independence in other or most other 
 respects. Some, upon being beaten in war, were allowed to 
 a large degree their autonomy, retaining in some cases their 
 ancient constitutions and the power to choose their own 
 magistrates, etc., and enact their own laws; while in other 
 cases new bodies of laws were imposed, or the power of select- 
 ing magistrates was denied, etc. Again, some of the con- 
 quered cities were depopulated in whole or in part, and had 
 introduced into them colonies, bringing with them new con- 
 stitutions modelled usually after that of Rome itself. 
 
 1 See Guizot, Hist, of Civilization in System des heutigen Bomischen Rechts, 
 Europe, lect. ii. ; and for much that is Tol . vili. (Guthrie's Savigny's Priv. Int. 
 contained in this chapter see Savigny, Law), §§ 346-369. 
 
 1 1 
 
§ 1.] THE LAW OP DOMICIL. [CHAP. I. 
 
 Various subsequent changes took place from time to time 
 in the constitutions of many of these cities, voluntarily in some 
 cases, and in others in consequence of internal disorders or 
 open revolt against Rome ; and changes also occurred in the 
 relations with that city of themselves and their citizens, new 
 privileges being conferred in some cases, and in others exist- 
 ing privileges being withdrawn or restricted. And doubtless, 
 too, there was constantly going on a gradual assimilation 
 in the main between the constitutions of the various cities. 
 Without entering into these matters in detail, and without 
 stopping to discuss the consequences of the Lex Julia Muniei- 
 palis, which conferred the jus civitatis upon all Italians, it is 
 sufficient to say that these cities — or urban communities, as 
 they are sometimes aptly called — bore the common name 
 of civitates or respublicce,^ and included two general classes, 
 municipia and colonice, under which were several subordinate 
 classes, such as civitates fundanoe, prefecture, etc. ; each urban 
 community possessing a more or less independent constitu- 
 tion, with its own magistrates, having jurisdiction, and even 
 with power, more or less limited, of making its own laws. 
 To each town was attached a district called territorium or 
 sometimes regio. " At the time of the complete development 
 of the Roman constitution, towards the close of the republic 
 and during the first centuries of the empire," as Savigny 
 points out, the whole soil of Italy outside of the city of Rome 
 was included in these urban communities, " and every inhab- 
 itant of Italy belonged either to the city of Rome or to one 
 or other of these urban communities. The provinces, on the 
 contrary, had originally very various constitutions. They had, 
 however, gradually approximated to the municipal system of 
 Italy, although in them this system was not carried out so 
 completely and thoroughly. In the time of the great jurists, 
 in the second and third ' centilries of our era, the proposition 
 just now laid down in regard to Italy could almost be applied 
 
 " The subjeotof the various constitu- Chavanes, Eoussel, and De Fongaufier. 
 
 tions of the Eoman urban communities See also Demangeat, Cours filementaire 
 
 has been ably discussed with special de Droit Romain, 1. 1, 1. 1, pp. 152-172, 
 
 reference to the Roman doctrine of dom- 2d ed. (1867). 
 icil in the Theses du Doctoral of Ancelle, 
 2 
 
§ 3.] INTRODUCTION. [CHAP. I. 
 
 to the whole empire. The soil of the empire was almost 
 entirely included in distinct urban territories, and the inhabi- 
 tants of the empire appertained either to the city of Rome or 
 to one or other urban community." ^ 
 
 § 2. Origo and Domiciiium. — The Roman law recognized 
 two kinds of connection between a person and an urban com- 
 munity ; namely, citizenship (generally called origo) and dom- 
 icil (domiciiium'). While a discussion of the former does 
 not fall directly within the scope of this work, it is necessary 
 to state briefly its general features, inasmuch as without such 
 statement it is impossible to arrive at any clear conception 
 of domicil under the Roman law. 
 
 Those who possessed citizenship in an urban community 
 were usually designated as municipes, or sometimes as cives, 
 while ineolce were those who were domiciled within the urban 
 territory.^ 
 
 § 3. Id. Origo. — Citizenship arose in four ways : first, by 
 birth ; second, by adoption ; third, by manumission ; and 
 fourth, by allection, or formal admission by the magistracy. 
 "Municipem aut nativitas facit, aut manumissio, aut adop- 
 tio." 1 " Cives quidem origo, manumissio, allectio, vel adoptio : 
 incolas vero, domiciiium facit." ^ 
 
 First, hy Birth. — This was nativitas or origo in its restricted 
 sense. But inasmuch as it described the most usual mode 
 of acquisition of citizenship, the term origo was commonly 
 employed as a generic, term to designate the civic relation 
 however arising. A legitimate child usually followed the 
 citizenship of his father,* and whether such child at birth 
 acquired citizenship in a pa,rticijlar place depended upon 
 whether his father had citizenship there. The exception to 
 this general rule arose in a few cases where, by special privi- 
 
 » Savigny, op. cit. § 351. = Code 10, t. 39, 1. 7. 
 
 1 Savigny, op. ci«. §353, gives the fol- ' Dig. 50, t. 1, 1. 6, § 1. "Filius 
 
 lowing contra.sted terminology by which civitatem, ex qua pater ejus naturalem 
 
 the two grounds of connection were dis- originem ducit, non domiciiium sequi- 
 
 tinguished:— tur." Code 10, t. 38, 1. 3. "lilios 
 
 Mimicipes and ineolce. apud 'originem patris, non in matema 
 
 Origo and domiciiium. civitate, etsi ibi nati sint (si modo non 
 
 Jus originis a,nA.ju3 incolatus, domiciliis retineantur) ad honores, seu 
 
 Patria and domus. munera posse compelli, explorati juris 
 
 > Dig. 50, t. 1, 1. 1. est." Also Dig. 50, t. 1, 1. 1, § 2 ; 
 
 3 
 
§ 3.] THE LAW OF DOMICIL. [CHAP. I. 
 
 lege conferred upon certain cities, women belonging to them 
 transmitted their citizenship to their legitimate children;*- 
 and it is not clear from the texts which have come down to 
 us whether in such case the child took citizenship only in the 
 native town of his mother or in both places.^ This exception 
 is of little importance to us beyond this, that it conclusively 
 demonstrates that the citizenship of the parent and not the 
 domicil (which in the case of a married woman was always 
 that of her husband ^) was the basis upon which the jus 
 originis of the child rested. 
 
 Illegitimate children acquired by origo citizenship in the 
 town to which the mother belonged.^ 
 
 Second, hy Adoption. — Adoption conferred a cumulative 
 citizenship upon the adopted person. For while he retained 
 his former citizenship with all its incidents, he gained also 
 that of his adoptive father, and this double citizenship was 
 transmitted also to the children of the adopted son.^ But 
 as this anomalous condition of cumulative citizenship began 
 with and depended upon the artificial relation created by 
 adoption, so it ceased upon the destruction of that relation 
 by emancipation.^ 
 
 Code 10, t. 31, 1. 36, and see infra, next in itself the more protable. Op. cit. 
 
 note. § 351, note i. 
 
 * Dig. 50, t. 1, 1. 1, § 2. "Qui ex " See infra, § 210. 
 
 ductus igitur Campanis parentibus na- ' Dig. 50, t. 1, 1. 9. "Ejus, qui 
 
 tus est, Campanus est. Sed si ex patre justum patrein non habet, prima origo 
 
 Campano, matre Puteolana, geque muni- a matre eoque die, quo ex eaeditus est, 
 
 ceps Campanus est; nisi fortie privilegio numeiari debet." See also Dig. 50, 
 
 aliquo matema origo censeatur ; tunc t. 1, 1. 1, § 2. Supra, § 3, n. 4. 
 
 enim maternse originis erit municeps. ' Dig. 50, t. 1, 1. 15, § 8. "Jus 
 
 Utputa Iliensibus concessum est, ut qui originis in lionoribns obeundis ac mu- 
 
 matre Iliensi est, sit eorum municeps. neribus suscipiendis, adoptione non mu- 
 
 Etiam Delphis hoc idem tributum et tatur ; sed novis qnoque muneribus 
 
 conservatum est. Celsus etiam refert, iilius per adoptivum patrem adstringi- 
 
 Ponticis ex beneficii Pompeii Magni tur." And Dig. 50, t. 1, 1. 17, § 9. 
 
 competere, ut qui Pontica matre natus "In adoptiva familia susceptum, exem- 
 
 esset, Ponticus esset. Quod beneficium plo dati, muneribus civilibus apud origi- 
 
 ad vulgo quiiesitos solos pertinere qui- nem avi quoque naturalis respondere, 
 
 dam putant ; quorum sententiam Celsus D. Pio placuit ; quamvis in isto fraudis 
 
 non probat ; neque enim debuisse ca- nee suspicio quidem interveniret." 
 
 veri, ut vulgo quiesitus matris conditio- 9 Dig. 50, t. 1, 1. 16. " Sed si 
 
 nem sequeretur ; quam enim aliam origi- emancipatur ab adoptive patre, non 
 
 nam hie habet 1 sed ad eos, qui ex diver- tantum filius, sed etiam civis ejus civi- 
 
 satum civitatium parentibus orirentur." tatis, eujus per adoptionem fuerat factus, 
 
 ' Savigny considers the latter opinion esse desinit." 
 
 4 
 
§ 3.] INTRODUCTION. [CHAP. I. 
 
 Third, hy Manumission. — The f reedman by mamimission 
 acquired citizenship in the native town of his patron ; ^^ and 
 this also descended to his children. If the patron had citizen- 
 ship in several places," or if the common slave of several 
 masters ^ were manumitted by them, then a plural citizen- 
 ship might arise by manumission. But only by complete 
 manumission was thus acquired citizenship which imperfect 
 manumission did not confer.^* 
 
 Fourth, hy Alleetion. The last mode of acquiring citizenship 
 was by alleetion. This subject is involved in much obscurity. 
 It lias been thought by some that this was not a distinct mode, 
 but that allectio is only another name for adoptio. Cujas^* 
 cites from manuscripts (without however approving) a read- 
 ing of the text contained in the Code different from that given 
 above, — namely, " allectio, id est, adoptio ; " and some color 
 has been given to this reading by the entire omission of allec- 
 tio in the text contained in the Digest. But it is not usually 
 accepted ; and although authority in the Roman law sources 
 is wanting, Savigny ^^ holds that by allectio " is to be under- 
 stood the free gift of citizenship by the municipal magistrates, 
 of the legality of which there could be no doubt even if it 
 were not expressly attested." Without authority it certainly 
 seems reasonable that the power to admit citizens must have 
 
 ^'' Dig. 50, t. 1, 1. 6, § 3. " Liber- ditionis ejusque civitatis jus obtines, 
 
 tini originem patronum vel domicilium unde, qua; te manumisit, fuit. Eoram 
 
 seqnuntur ; item qui ex his nascuntur." enim condrtionem sequi ex causa iidei 
 
 Id. 1. 22, pr. " Filii libertorum, liber- commissi manumissos pridem placuit, 
 
 tarumque, liberti et patroui manumisso- qui libertatem praestiterint, non qui dari 
 
 ris (lomicilium aut originem sequuntur." rogaverint." See also the next two notes. 
 
 Id. 1. 37, § 1. " Libertos eo loco mu- u Dig. 50, t. 1, 1. 27, pr. "Ejus, 
 
 nns facere debere, unde patrona erit, et qui manumisit, municeps est manu- 
 
 nbi ipsi domicilium habebunt, placet." missus, non domicilium ejus, sed patriam 
 
 Id. t. 4, 1. 3, § 8. "Libei-ti muneri- secutus. Et si patrouum habeat dua- 
 
 bus fungi debent apud originem patrono- rum civitatium municipem, per manu- 
 
 rum ; sed si sua patrimonia habent missionem eariindem civitatium erit 
 
 sussectura oneribus : res enim patrono- municeps." 
 
 rum muueribus libertinorum subjecta 12 Dig. 50, t. 1, 1. 7. " Si quis a 
 """ sst. pluribus manumissus sit, omnium pa- 
 Code 10, t. 38, 1. 2. "Si, ut pro- tronum originem sequitur." 
 ponis, ea, quae ex causa fldeicommissi te '' See Savigny, op. cit. § 351, note n, 
 manumisit, ab ea libertatem jnstam fuerit and § 356. 
 consecuta, quae originem ex provincia " Tom. ii. p. 737 B. 
 Aquitania ducebat ; tu quoque ejus con- ^ Op. cit. § 351. 
 
 5 
 
§ 4.J THE LAW OF DOMICIL. [CHAP. I. 
 
 rested somewhere in the civic body ; but by whom it was to be 
 exercised, in what manner, or on what conditions, we have 
 not the grounds even for conjecture. 
 
 § 4. Id. id. By whichever of these means citizenship arose, 
 it could not be extinguished by the mere will of the person ; 
 but, as Savigny points out ^ (except in the case of citizenship 
 arising from adoption, which as we have seen ceased with 
 emancipation) " dismission by the municipal authorities must 
 have been as necessary as allection by them." A legal mar- 
 riage, while it did not destroy the origo of the wife even if it 
 were different from that of her husband, suspended during her 
 marriage her liability to personal burdens connected with her 
 native citizenship.^ And a similar immunity from personal 
 burdens without the complete dissolution of his original citi- 
 zenship applied in the cases of a citizen raised to the dignity 
 of a senator, and his children,^ and a soldier during the period 
 of his service.* 
 
 It is apparent, from what has already been said, that a per- 
 son might at the same time possess citizenship in several 
 urban communities, and so too it was possible that in several 
 cases he might be without citizenship in any .^ 
 
 1 Op. cit. § 351, note p. itemque nepotes, pronepotes et pronep- 
 
 2 Code 10, t. 62, 1. 1. "Earn, quse tes ex filio, origini eximuntur, licet 
 aliunde oriunda, alibi nupta est ; si municipalem retineant dignitatem." 
 non in urbe Roma maritus ejus consis- * Dig. 50, t. 4, 1. 3, § 1 . " His, qui 
 tat, non apud originem suam, sed apud castris operam per milltiam dant, nul- 
 incolatum mariti ad honores.seu munera, lum municipale munus injungi potest ; 
 quse personis cohserent, quorumque is cseteri autem privati, quamvis militum 
 sexus capax esse potest, compelli posse, cognati sunt, legibus patriae sute, et pro- 
 ssepe, rescriptum est. Patrimonii vero vincife obedire debent." 
 
 munera neeesse est mulieres in his locis. Id. 1. 4, § 3. " Qui obnoxius muneri- 
 
 in quibus possident, sustinere." See also bus .suie civitatis fuit, nomen militise, 
 
 Dig. 50, t. 1, 1. 37, § 2, and 1. 38, § 3. defugiendi oneris municipalis gratia, de- 
 
 " Dig. 50, 1. 1, 1. 23, pr. " Municeps dit ; deteriorem causam Reip. facere non 
 
 esse desinit senatoriam adeptus digni- potuit." 
 
 tatem, quantum ad munera ; quantum ' According to Savigny, op. dt. 
 
 vero ad honorem, retinere creditur origi- § 351, this might occur in several ways : 
 
 nem. Denique manumissi ab eo, ejus (1) " "When a foreigner was received as 
 
 municipii efficiuntur municipes, unde a resident into the Roman Empire with- 
 
 ongmem trahit." out becoming by allection a citizen of 
 
 Id. 1. 22, §§ 4 and 5. " Senator or- any municipality ; " (2) " When a citi- 
 
 dine motus, ad originalem patriam, nisi zen of any town was released from its 
 
 hoc specialiter impetraverit, non resti- municipal connection without being re- 
 
 tuitur. Senatores et eorum filii, filise- oeived into another community ; " and 
 
 que, quoque tempore nati, natseve, (3) it took place among "the freedmen of 
 
 6 
 
§ 5.J INTRODUCTION. [CHAP. I. 
 
 § 5. Id. Domiciiium. — The second bond or connection which 
 the Roman law recognized between person and place was 
 domiciiium. It differed from origo in that it was of a less 
 artificial character and generally depended solely upon the 
 will of the person ; so that, generally speaking, without the 
 consent of the municipal authorities one might acquire and 
 abandon domicil at pleasure, provided that his intention to do 
 so was accompanied by the fact of transfer of bodily presence. 
 It is not proposed here to enter into an inquiry concerning 
 the Roman theory of domicil, inasmuch as it will be noticed 
 incidentally in various parts of the body of this work. For 
 tlie present the learned reader is referred to the principal 
 texts contained in the Code and Digest, which are collected 
 below in a note.^ It is sufficient to say that although it 
 differs in some points from the modern theory, there is a gen- 
 eral correspondence, and more particularly with the modern 
 theory as held by the continental jurists, than whom the British 
 and American authorities have taken a somewhat wider de- 
 parture from the Roman theory in several particulars. 
 
 the lowest class, who wer& dedititiorum Dig. 50, t. 1, 1. 27, § 1. Si quis ne- 
 
 numero, and belonged to no coramu- gotia sua non in colonia, sed in muni- 
 
 nity." Bar, however, disputes the cor- cipio semper agit, in illo vendit, emit, 
 
 rectness of these three categories, and contrahit, eo in foro, balineo, specta- 
 
 argues that every free inhabitant of the culis utitur ; ibi festos dies celebrat : 
 
 llcman world must have either actively omnibus denique municipii commodis, 
 
 or passively belonged to some definite nuUis coloniarum, fruitur, ibi magis 
 
 municipal territory. He considers it habere domiciiium, quam ubi colendi 
 
 probable that the .dediiiiii "did belong causa diversatur. 
 
 to some particular community as pas- Dig. 50, 1. 16, 1. 203. Sed de ea re con- 
 
 sive citizens, if not active." Bar, Int. stitutum esse, earn domum unicuique 
 
 Privat und Strafrecht, § 29, pp. 75-77 nostrum debere existimari, ubi quisque 
 
 {Gillespie's trans, pp. 82, 83). sedes et tabulas haberet, suarumque re- 
 rum constitutionem fecisset. 
 
 1 Definitions. pig. go, t. 16, 1. 239, § 2. Incola 
 
 C. 10, t. 39, 1. 7. Gives quidem est, qui aliqua regione domiciiium suum 
 
 origo, manumissio, alleetio, vel adoptio : coutulit : quem Grseci wdpoucov (id est, 
 
 incolas vero (sicut et Divus Hadrianus juxta halitantem) appellant. Nee tantum 
 
 Edicto suo manifestissime declaravit) do- hi, qui in oppido morantur, incolse sunt: 
 
 micilium facit. Et in eodem loco singu- sed etiam, qui alicujus oppidi finibus ita 
 
 los habere domiciiium, non ambigitur, agrum habent, ut in eum se, quasi in 
 
 ubi quis larem, rernmque, ac fortunarum aUquam sedem, recipiant. 
 suarum summam constituit, unde rnrsus 
 
 non sit discessurus, si nihil avocet : unde Genbeal Pkinoiplbs. 
 
 cum p.-ofectus est, peregrinari videtur : Dig. 50, t. 1, 1. 27, § 2. Celsns, lib. 
 
 quod si rediit, peregrinari jam destitit. 1 Digestorum, tractat : si quis instruo- 
 
 7 
 
§6.] 
 
 THE LAW OF DOMICIL. 
 
 [chap. I. 
 
 § 6. Origo not Domicil of Origin. — In these two ways, there- 
 fore, a person might belong to an urban community. Enough 
 
 tU3 sit duobus locis aequaliter, neque hio, 
 quam illio, minus frequenter commore- 
 tur : uti domicilium habeat, existima- 
 tione animi esse accipiendum : ego du- 
 bito, si utrobique destinato sit animo, an 
 possit quis duobus locis domicilium ha- 
 bere : et verum est, habere, licet difficile 
 est : quemadmodum difficile est, sine 
 domicilio esse quemquani. Puto autem 
 et hoc procedere posse, si quis domicilio 
 relicto nayiget, vel iter faciat, quierens, 
 quo se conferat, at(jue ubi constituat: 
 nam hunc puto sine domicilio esse. 
 
 Dig. 50, t. 1, 1. 5. Labeo judicat, 
 eum, qui pluribus locus ex aequo ne- 
 gotietur, nusquam domicilium habere : 
 qnosdam autem dicere refert, pluribus 
 locis eum incolara esse aut domicilium 
 habere : quod verius est. 
 
 Dig. 50, t. 1, 1. 6, § 2. Viris pru- 
 dentibus placuit, duobus locis posse ali- 
 quem habere domicilium, si utrobique 
 ita se instruxit, et non ideo minus apud 
 alteros se coUocasse videatar. 
 
 Dig. 50, t. 1, 1. 20. Domicilium re 
 et facto transfertur, non nuda contesta- 
 tione : sicut in his exigitur, qui negant 
 se posse ad munera, ut incolas, vocari. 
 
 Dig. 50, t. 1, 1. 17, § 13. Sola do- 
 mus possessio, quse in aliena civitate 
 comparatur, domicilium non facit. 
 
 Dig. 50, t. 1, 1. 31. Nihil est impedi- 
 mento, quominns quis, ubi velit, habeat 
 domicilium, quod ei interdictum non 
 sit. 
 
 Dig. 35, t. 1, 1. 71, § 2. Titio cen- 
 tum relicta sunt ita, ut a monumento 
 meo non recedat, vel uti in ilia civitate 
 domicilium habeat : potest dici, non 
 esse locum cautioni, per quam jus lib- 
 ertatis infringitur. Sed in defuncti 
 libertis alio jure utimur. 
 
 Dig. 50, t. 1, 1. 34. Incola jam mu- 
 neribus publicis destiuatus, nisi perfecto 
 munere, incolatui renunciare non po- 
 test. 
 
 C. 10, t. 39, 1. 1. Non tibi obest, si 
 cum incola esses, aliquod munus susce- 
 pisti: modo si antequam ad alios honores 
 vocareris, domicilium transtulisti. 
 
 8 
 
 Domicil of Paeticular Persons. 
 
 a. Wife. 
 
 C. 12, t. 1, 1. 13. Mulieres honore 
 maritorum erigimus, genere nobilitamua, 
 et forum ex eorum persona statuimns : 
 et domicilia mutamus. Sin autem 
 minoiis ordinis virum postea sortitae 
 fuerint : priore dignitate privatse, pos- 
 terioris mariti sequentur conditionem. 
 
 Dig. 50, t. 1, 1. 38, § 3. Item re- 
 scripserunt, muliereni, quam din nupta 
 est, incolam ejusdem civitatis videri, 
 cujus maritus ejus est : et ibi, undo 
 origiuem trahit, non cogi muneribus 
 fungi. 
 
 Dig. 23, t. 2, 1. 5. -Mulierem ab- 
 senti per literas ejus, vel per nuncium 
 posse nubere placet, si in domum ejus 
 deduceretur: cam vero, quse abesset, ex 
 Uteris vel nuncio suo duel a marito non 
 posse : deductione enim opus esse in 
 mariti, non in uxoris- domum, quasi in 
 domicilium matrimonii. 
 
 Dig. 5, t. 1, 1. 65. Exigere dotem 
 mulier debet illic, ubi maritus domi- 
 cilium habuit, non ubi instrumentum 
 dotale conscriptum est : nee enim id 
 genus contractus est, ut et eum locum 
 spectari oporteat, in quo instrumentum 
 dotis factum est, quam eum, in cujus 
 domicilium et ipsa mulier per conditio- 
 nem matrimonii erat reditura. 
 
 Dig. 50, t. 1, 1. 37, § 2. Mulieres, 
 quae in matrimonium se dederint non 
 legitimum, non ibi muneribus surgeu- 
 das, unde mariti earum sunt, sciendum 
 est : sed unde ipsse ortse sunt ; idque 
 Divi Fratres rescripserunt. 
 
 Dig. 50, t. 1, 1. 32. Ea, quse desponsa 
 est, ante contractus nuptias suum non 
 mutat domicilium. 
 
 Dig. 50, t. 1, 1. 22, § 1. Vidua mu- 
 lier amissi mariti domicilium retinet, 
 exemplo clarissimae personae per mari- 
 tum factae ; sed utrumque aliis inter- 
 venientibus nuptiis permutatur. 
 
 b. Child. 
 
 Dig. 50, t. 1, 11. 3, 4. Place', etiam, 
 iiUos-familias domicilium habere posse : 
 
§6.] 
 
 INTRODUCTION. 
 
 [chap. I. 
 
 has been said to show that origo (whether that word be used 
 in its generic or specific sense) and domicilium differ widely 
 in their constitution, and particularly that the former in the 
 Roman law did not correspond with what is now termed 
 "domicil of origin," i as is erroneously supposed by some good 
 
 non utique ibi, ubi pater habuit, sed 
 ubicunque ipse domicilium constituit. 
 
 Dig. 50, t. 1, 1. 6, § 1. Filius civi- 
 tatem, ex qua pater ejus naturalem origi- 
 nem ducit, non domicilium sequitur. 
 
 Dig. 50, 1. 1, 1. 17, § 11. Patris domi- 
 cilium filium aliorum incolam civilibus 
 muneribus alienae civitatis non adstrin- 
 git : cum in patris quoque persona domi- 
 cilii ratio tempoiuria sit. 
 
 c. Freedmen. 
 
 Dig. 50, t. 1, 1. 6, § 3. Libertini 
 originem patronorum vel domicilium 
 sequuntur : item qui ex his nascuntur. 
 
 Dig. 60, t. 1, 1. 22, pr. Filii liber- 
 torum, libertarumque, liberti paterni et 
 patroni manumissorl'3 domicilium aut 
 originem sequuntur. 
 
 Dig. 50, t. 1, 1. 22, § 2. Municipes 
 sunt liberti et in eo loco, ubi ipsi domi- 
 cilium sua voluntate tulerunt : nee 
 aliquod ex hoc origin! patroni faciunt 
 praejudicium ; et utrobique muneribus 
 adstringuntur. 
 
 Dig. 50, t. 1, 1. 27, pr. Ejus, qui 
 manumisit, municeps est manumissus, 
 non domicilium ejus, sed patriam 
 secutus. 
 
 Dig. 50, t. 1, 1. 37, § 1. Libertos eo 
 loco munus facere debere, unde patrona 
 erit, et ubi ipsi domicilium habebunt, 
 placet. 
 
 d. Students, 
 
 C. 10, t. 39, 1. 2. Nee ipsi, qui stu- 
 diorum causa aUquo loco morantur, 
 domicilium ibi habere creduntur, nisi 
 decern annis transactis eo loco sedes 
 sibi constituerint, secundum epistolam 
 Divi Hadriani : nee pater qui propter 
 filium studentem frequentius ad eum 
 commeat. Sed si aliis rationibus domi- 
 cilium in splendidissima civitate Laodi- 
 ceorum habere probatus fneris, menda- 
 cium, quominus muneribus fungaris, 
 non proderit. _ 
 
 Dig. 47, t. 10, 1. 5, § 5. Si tamen 
 in funduni alienum qui domino coleba- 
 tur, introitum sit, Labeo negat esse 
 actionem domino fundi ex Lege Cornelia: 
 quia non possit ubique domicilium ha- 
 bere, hoc est, per omnes villas suas. 
 Ego puto ad omnem habitationem, in 
 qua paterfamilias habitat, pertinere banc 
 Legem : licet ibi quis domicilium non 
 habeat : ponamus enim studiorum causa 
 Komse agere : KomiE utique domicilium 
 non habet; et tamen dicendum est, si vi 
 domus ejus introita fuerit, Comeliam 
 locum habere. Tantum igitur ad meri- 
 toria Tel stabula non pertinebit. Cfete- 
 rum ad hos pertinebit, qui inhabitant 
 non momenti causa, licet ibi domicilium 
 non habeant. 
 
 e. Eelegati. 
 
 Dig. 50, t. 1, 1. 22, § 3. Relegatus 
 in eo loco, in quern relegatus est, interim 
 necessarium domicilium habet. 
 
 Dig. 50, t. 1, 1. 27, § 3. Domicilium 
 autem habere potest et relegatus eo loci, 
 unde arcetur, ut Marcellus scribit. 
 
 f. Soldiers. 
 
 Dig. 50, t. 1, 1. 23, § 1. Miles ibi 
 domicilium habere videtur, ubi meret, 
 si nihil in patria possideat. 
 
 g. Senaiors. 
 
 C. 10, t. 39, I. 8. Senatores in sa- 
 cratissima urbe domicilium dignitatis 
 habere videntur. 
 
 Dig. 60, t. 1, 1. 22, § 6. Senatores, 
 qui liberum commeatum, id est, ubi 
 velint, morandi arbitrium impetraverunt, 
 domicilium in urbe retinent. 
 
 C. 12, t. 1, 1. 15. Clarissimis, vel 
 Speotabilibus universis ad genitale so- 
 lum, vel quolibet alio, et sine commeatu 
 proficiscendi, et ubi voluerint, commo- 
 randi, habitandive permittimus faoiil- 
 tatem. 
 
 1 See infra, §§ 104, 106. 
 
 9 
 
§ 8.] THE LAW OF DOMICIL. [CHAP. I. 
 
 writers in modern times,^ and as was apparently assumed by 
 some of the older continental writers, who in other respects 
 seem to have correctly apprehended the Roman doctrine of 
 origo. 
 
 § 7. Consequences of Origo and Domicilium. — The conse- 
 quences of such connection were threefold : ^ first, liability 
 to share municipal burdens ; second, the duty of obedience 
 to municipal magistrates, and particularly the personal juris- 
 diction arising therefrom ; and third, subjection to the spe- 
 cial municipal law applicable to an individual as a personal 
 quality. 
 
 § 8. Id. (a) Subjection to Municipal Burdens. — First. 
 Whatever rights may have been derived from the connec- 
 tion of a person with a particular place, they were the result 
 of citizenship (origo) alone, and not of domicil ; for domicil 
 was dependent upon the will of the individual, and it is not to 
 be supposed that municipal rights could be obtained with- 
 out the consent of the municipal authorities. But even such 
 rights as citizenship conferred, however valuable they may 
 have been at first, in course of time grew to be very insignifi- 
 cant ; while on the other hand the municipal burdens to 
 which both municipes and incolce were subject grew to be 
 very grievous ; and especially so were the duties and respon- 
 sibilities incident to the decurionatus, or municipal office.^ 
 
 '^ Thus, for example, even so accu- supply tlie deficiencies from their own 
 
 rate a writer as Story (Confl. of Laws, property. Each decurio was, moreover, 
 
 § 46), says : " Jtrst, the place of birth of considered as a guarantee for the sol- 
 
 a person is considered as his domicil, if vency and good faith of his colleague, 
 
 it is at the time of his birth the domicil and for the successor whom he had pre- 
 
 of his parents. ' Patris originem unus- sented to fill the office which he va- 
 
 quisque sequatur.' This is usually de- cated. This grievous oppression made 
 
 nominated the domicil of birth or na- every citizen as anxious to escape as he 
 
 tivity, ' domicilium originis.' . . . If he had been formerly desirous to obtain 
 
 is an illegitimate child, he follows the the honor ; but the law imposed upon 
 
 domicil of his mother. ' Ejus, qui jus- every one who had his domidUum in », 
 
 turn patrem non habet, prima origo a particular place the necessity of filling 
 
 matre.' " See also infra, § 104. See the public offices and discharging the 
 
 infra, §§ 107, 202, note 1. duties incident to them in that place. 
 
 1 See Savigny, op. cit. §§ 355-357, So also with respect to the assessment 
 
 and the authorities there cited. and payment of taxes domicil was of 
 
 1 " Under the Emperors the deeu- much importance j hence the criteria of 
 riones, who collected the imperial taxes, it are more fully examined in the pas- 
 became responsible fcr the payment of sages of the Digest and the Code which 
 the fixed amount, and were compelled to relate to these subjects. But not alone in 
 
 10 
 
§ 10.] INTRODUCTION. [CHAP. I. 
 
 But the obligation to undertake these and other municipal 
 burdens rested upon all the members of the municipality, 
 whether they entered into the relation by origo or domicil. 
 It was particularly in consequence of the oppressive nature 
 of these burdens, which were constantly sought to be evaded, 
 that the subjects of origo and domicil were much discussed, 
 and many texts have come down to us. 
 
 § 9. Id. (6) Subjection to Local Magistrates ; Forum. — Sec- 
 ond. It was a general principle of the Roman law that every 
 lawsuit must be brought in the forum of the defendant and 
 not in that of the plaintiff ; and a forum was imputed to each 
 individual in every town, whose magistrates he was bound to 
 obey by reason of his belonging to such town. But as he 
 belonged thus to every town in which he had origo or domi- 
 cilium, it follows that origo and domicilium determined the 
 forum of the defendant, and hence the place where every law- 
 suit must be brought. Where, however, one had origo and 
 domicilium in different places, the place to which he belonged 
 by origo was doubtless usually resorted to as the forum only 
 in case he happened to be found there ; and as he could be 
 more easily and conveniently reached in the place of his 
 domicil, it is probable that that place was usually resorted to. 
 This is probably the explanation of the fact that in the texts 
 relating to jurisdiction domicil is more frequently referred to 
 than ongo. 
 
 § 10. Id. (c) Personal Law. — Third. With reference to 
 the third consequence of the connection of a person with an 
 urban community mentioned above, much is left to conjecture, 
 as few texts which have any bearing on the subject have come 
 down to us. There is enough, however, as Savigny acutely 
 demonstrates, to show that in certain cases, at least, the terri- 
 torial law applicable to an individual as a personal quality 
 
 these passages, for in discussing the ques- and various other subjects, the question 
 
 tion as to the difference between the civis of domicil was frequently brought under 
 
 and the incola of a province, as to the the consideration of the jurists of an- 
 
 trihunal before which a person should cient Rome." Phillimore on Dom., eh. 
 
 he convened, when and under What mod- 1, no. 5. These remarks are with spe- 
 
 ifications the doctrine of prescription cial reference to domicil ; but what is 
 
 should take place, what causes excused said of domicilium may be said with 
 
 the tutor from accepting the office im- equal force of origo. ' 
 
 posed upon him, — in discussing these 
 
 11 
 
§ 12.] THE LAW OF DOMICIL. [CHAP. I. 
 
 was determined by his citizenship if he had any. If he had 
 citizenship in several communities, that learned jurist con- 
 tends, his citizenship by birth determined in preference to that 
 subsequently acquired by adoption or allection ; and if he had 
 origo in no place, his domicil necessarily must have been re- 
 sorted to. The last hypothesis, however. Bar ^ combats upon 
 the ground that "the, particular law of an individual was 
 considered to be privilegium — either odiosum or favorabile, as 
 the case might be — of his status" and therefore that it is 
 obviously absurd to hold that a person by changing his domi- 
 cil according to his own pleasure could have acquired such a 
 '■^privilegium of status." 
 
 § 11. Transition to Modern Law. — All of the consequences 
 above enumerated of connection between person and place 
 have survived to our times; to what extent will be briefly 
 outlined in the succeeding chapter. For this liistorical ac- 
 count the first two may be dropped, and the third — namely, 
 subjection to territorial law as a personal quality — briefly 
 followed. 
 
 § 12. Id. Personal Law. — Several principles more or less 
 distinct have in different times and countries been resorted to 
 for the purpose of determining the personal law applicable to 
 an individual ; namely, citizenship (or, as it has appeared in 
 recent tivaes, political nationality'), race descent, and domicil. 
 
 Besides citizenship as we have already contemplated it, in 
 its restricted sense (namely, municipal citizenship, or origo), 
 there was in the Roman law a citizenship higher and having 
 a wider scope, which did not always accompany the lower 
 and more restricted form. For until the time of Caracalla a 
 municeps, or citizen of an urban community, was not necessarily 
 a civis Momanus. Roman citizenship carried with it the ad- 
 herence to the individual who possessed it of a particular law 
 (that is, the jus civilis) as the personal quality, which clothed 
 him with rights and capacities which those who did not pos- 
 sess it were denied. How far the status conferred by Roman 
 citizenship might have been modified by the possession of jus 
 
 I Op. cit. § 29, p. 79 (Gillespie's as we have seen (§ 4, note 5, SMpra), that 
 trans, p. 86), and § 2, note 6 (Gilles- the case supposed could not happen, 
 pie's trans, p. 12). Besides, he holds, 
 
 12 
 
§ 13.] INTBOOrCTION. [CHAP. I. 
 
 originis in an urban community having particular local laws, 
 is by no means clear. Bar^ holds that with the universal 
 extension of citizenship by Caracalla, the particular system 
 ceased ; but this is denied by Savigny. 
 
 § 13. Id. id. Race Descent. — But citizenship, of whichever 
 aspect, as a test and determinant of the personal law of an 
 individual, after a while gave way before a new principle, and 
 was almost entirely lost sight of until it was revived in quite 
 recent times. The principle referred to was nationality or 
 race descent, and was carried to its utmost extent during 
 the wandering and early settlement of the Teutonic tribes, 
 immediately before and after the fall of the Roman Empire. 
 Having no settled abode, but wandering about from place 
 to place, a member of such tribe could not be looked upon 
 as connected with any particular place by any tie. He was 
 looked upon as a Lombard, a Burgundian, or a Frank, and 
 judged as such and not as a citizen or an inhabitant of this or 
 that particular place. And even when these wanderers,, after 
 having overrun and conquered different parts of the Roman 
 Empire, had become settled in permanent seats, they did not 
 for a long time become fused with the inhabitants of the 
 conquered provinces, but conqueror and conquered remained 
 distinct, each race retaining its own laws ; so that there were 
 often found in the same district several distinct systems of 
 jurisprudence administered to different portions of the in- 
 habitants in accordance with their respective nationalities. 
 Thus the Frank was judged by the Salique or Ripuary Code, 
 and the Gaul by that of Theodosius ; and " even in the same 
 city Roman, Lombard, Frank, Burgundian, and Goth might 
 all be found, each living under his own personal law." ^ 
 
 ^ Op. cit. % 29, p. 79 (Gillespie's Bishop Agobardus, writing to Louis le 
 
 trans, p. 86). D^bonnaire in the ninth centurj', said : 
 
 1 Westlake, Priv. Int. L. 2d ed. " Tanta diversitas legum, quanta non 
 
 Introd. p. 11 ; Savigny, op. cit. § 346, solum in regionibus, aut civitatibus, sed 
 
 and Geschichte des Rbmischen Rechts etiam in multis domibus habetar. Nam 
 
 im Mittelalter, vol. i. c. 3, §§ 30-33 ; plerumque contingit ut simul eant aut 
 
 Bar, op. cit. 3 ; Hallam, Middle Ages, sedeant quinque homines, et nullus 
 
 ch. 2 ; Gibbon, oh. 38 ; Montesquieu, eorum communem legem cum altera 
 
 Espr. des Lois, 1. 28, c. 2 ; Story, op. ci<. habeat." Quoted by Gibbon, ch. 38, 
 
 § 2 a ; Laurent, Droit Civil Int. t. 1, note 69. 
 pt. 1, c. 2, § 2, no. 3, par. 168 et seq. The 
 
 13 
 
§ 13.] THE LAW OP DOMICIL. [CHAP. I, 
 
 But with the rise of the feudal system we note the decline 
 of this principle. The corner-stone of that system was terri- 
 torial sovereignty, and hence its policy was to fuse all the 
 inhabitants of the particular territorial division into one mass, 
 to strike out all distinctions depending on national descent, 
 and to substitute strict territoriality. This was the general 
 rule, although there were particular instances in which a con- 
 trary policy was to a certain extent followed, — as for example 
 in the case of England after the Norman conquest. There 
 the distinction between Norman and Saxon was for many 
 years kept up, although it was mainly political and penal in 
 its character. A trace of this principle of national descent 
 has come down to more modern times in the disabilities im- 
 posed upon the Jews in various countries, as well as in the 
 allowance to that people of certain peculiar laws relating 
 to marriage and kindred subjects usually cognizable in the 
 ecclesiastical courts.^ 
 
 The rise of free cities and the growth of municipal institu- 
 tions also contributed largely to the desuetude of the princi- 
 ple of national descent. But, as is pointed out by Savigny, 
 the influence of Christianity, the advance of civilization, and 
 the more varied and active intercourse between different 
 nations have removed the rougher contrasts of nationalities, 
 and thrown their characteristic differences more and more 
 into the background.^ 
 
 So that the principle of nationality as a test and determi- 
 nant of civil status has been for the most part eliminated from 
 modern law. But not entirely ; for it is still applied in the cases 
 of European merchants resident in Eastern countries, where, 
 in the language of Lord Stowell, "an immiscible character 
 is kept up ; foreigners are not admitted into the general body 
 and mass of the society of the nation; they continue strangers 
 and sojourners, as all their fathers were." * It is also applied 
 
 2 See authorities cited, Guth. Savig. (Guthrie's trans, p. 59) ; Eichhorn, 
 § 346, note B, and Sir William Scott in Deutsche Staats- und Rechtsgeschichte, 
 The Indian Chief, 3 C. Rob. 22. vol. i. § 46. 
 
 3 On the causes of the disappearance * The Indian Chief, 3 C. Rob. 22, 29. 
 of race descent as the basis of personal See on this subject Lawrence's Wheaton, 
 laws, cf. Savigny, Geschichte, etc. vol. pt. 2, ch. 2, § 11, and notes. 
 
 i. § 49 ; System, etc. vol. viii. § 346 
 
 14 
 
§ 14.] INTRODUCTION. [CHAP. I. 
 
 in Eastern countries, not only to Europeans residing there, but 
 also among natives belonging to different races, — for example 
 in Turkey and India ; and to some degree it is applied in this 
 country in the case of the North American Indians. 
 
 § 14. Id. Local Laws and Customs. — But the feudal system, 
 besides fusing the different races dwelling within a given 
 territory, and therefore rendering impossible the application 
 of race descent for the determination of personal law, had done 
 another thing. It had broken up continental Europe into a vast 
 number of petty sovereignties exercising authority more or less 
 independent over territories each possessing its own customary 
 law, and had thus rendered possible, in course of time, the 
 rehabilitation of the old Roman principle of domicil. 
 
 The vast number of legal territories into which the soil of 
 continental Europe was split up seems at this day almost 
 incredible. France, where the feudal system flourished most 
 vigorously, was divided in the first instance into the " pays de 
 droit ^crit " and the " pays de droit coutumier," and the lat- 
 ter in its turn into many legal territories ; so that prior to 
 the adoption of the Code Napoldon the number of local cus- 
 toms exceeded three hundred,^ and according to Beaumanoir,^ 
 " the customs were so diverse that one was not able to find in 
 the kingdom of France two cMtellenies which in every case 
 used one and the same custom." The rise of free cities con- 
 tributed to the same result. Girardus Corselius writes to 
 Burgundus ^ that there were as many different sets of laws in 
 the Netherlands as there were cities. In Germany this state 
 of things was carried to the extent of dividing sometimes the 
 same township or city into several local customs.* "Thus 
 there coexisted in Breslau until Jan. 1, 1840, five different 
 particular laws and observances in regard to succession, the 
 property of spouses, etc., and the application of which was 
 limited to certain territorial jurisdictions. Not unfrequently 
 the law varied from house to house ; and it even happened 
 
 * Demolom'be, Coura de Code Napo- ^ Coutnme de Beauvoisis, preface. 
 Ifon, t. 1, no. 339. Desqniron (Domi- * Epistola ad Nich. Burgundum, 
 
 cile, p. 48) says two hundred. See also cited by Livermore, loc. cit. 
 Livennore, Contrariety of Laws, pp. 5, 6, * Savigny, System, etc. vol. viii. 
 
 and Enstis, C. J., in Huligh v. R. R. Co., § 347 and note (c). 
 6 La. An. 495 ; 8. c. 64 Am.. Dec. 565. 
 
 15 
 
§ 16.] THE LAW OP DOMICIL. [CHAP. I. 
 
 that one house was situated on the borders of different laws, 
 to each of which, therefore, it belonged in part." 
 
 § 15. Id. Real and Personal Statutes ; Return to Domicil. — 
 The necessity for some uniform principle for the application 
 of these local laws to constantly recurring legal relations 
 early became apparent, and the doctrine of real and personal 
 statutes was invented with domicil as the basis of the appli- 
 cation of the latter. Hence domicil came to be discussed to 
 a large extent by the continental jurists, and to be frequently 
 used for the settlement of conflicts of local laws. 
 
 § 16. Id. Codification and Political Nationality. — In recent 
 times codification has in most European countries stricken 
 out local customs, and replaced them with uniform national 
 laws ; and the field of the conflict of laws has therefore be- 
 come largely international instead of domestic, as it originally 
 was. Moreover, several European nations ^ have by positive 
 
 1 Italy;e. g'., Code, Preliminary Arti- Franyais par les traites de la nation a 
 
 cle 6. So too Belgium. The principle of laquelle cet etranger appartiendra ; " and 
 
 nationality prevails in the codes of many Art. 13, " L'etianger qui aura ete ad- 
 
 of the Swiss cantons. See Soldan, De mis par la gouvemement b, etablir son 
 
 I'influenee de la loi d'Origine et de la domicile en France, y jouira de tons 
 
 loi du Domicile sur I'etat et la capacity droits civils, tant qu'il continuera d'y 
 
 des personnes en droit international resider." But in the interpretation and 
 
 prive, c. 9. application of these provisions no end 
 
 Whether, and, if at all, to what ex- of difference of opinion appears. As it 
 
 tent, the French code estahlishes the is impossible here to state the various 
 
 principle of nationality, are questions of theories, the learned reader is refeiTed 
 
 no little difficulty and dispute. Most for further information to the following 
 
 of the writers think it does, but there among other authorities : Laurent, Droit 
 
 is high authority to the contrary. Art. Civil Int. t. 2, no. 97 et seg. ; Fiore, 
 
 3 of the Code Civil provides, "Leslois Droit Int. Priv. 1. 1, c. 1 (Pradier- 
 
 concemant lYtat et la capacite des per- Foder^'s translation) and note 1, p. 76 ; 
 
 sonnes regissent les Pran^ais, mSme resi- Brocher, Cours du Droit Int. Piiv. nos. 
 
 dant en pays Stranger ; " and this is 53-5.5 ; Asser et Eivier, Elements de 
 
 generally construed to apply to all Droit Int. Priv. nos. 20-23, and au- 
 
 Frenohmen in foreign lands, whether thorities cited in not^s ; Demolombe, 
 
 permanently or temporarily resident Cours de Code Napoleon, t. 1, no. 97 
 
 there. Some, however, refer the word et seq. ; Sirey et Gilbert, Code Civil 
 
 rimUmt to temporary residence alone Annote, notes to Arts. 3, 11, and 13 ; 
 
 in contradistinction to domicil, and ar- Fcelix, Traits du Droit Int. Priv. no. 
 
 gue that no new rule is introduced by 28,and Demangeat'snote; Savigny, Sys- 
 
 the provision quoted. With reference tem, etc. vol.' viii. §359 (Guthrie's trans, 
 
 to foreigners in France the Code Civil pp. 127, 128); Westlake, Priv.Int. L. 2d 
 
 is still less explicit, and furnishes two ed. pp. 27, 28 ; Bar, op. cit. §§ 30, 31, 
 
 texts, — namely, Art. 11 : " L'^tranger and Gillespie's note A ; Wharton, Confl. 
 
 jouira en France des mfimes droits civils of Laws, §§ 7, 8. What has been said of 
 
 que ceuxquisontouserontaccordes aux France applies also to Belgium. The 
 
 16 
 
§17] 
 
 INTRODUCTION. 
 
 [chap. I. 
 
 legislation discarded the principle of domicil in the determi- 
 nation of private international questions, and substituted for 
 it the principle of citizenship or political nationality. Domi- 
 cil has in those countries thus ceased to have the importance 
 which it once had, although it is still resorted to for the 
 settlement of many questions of municipal law. While, 
 therefore, its discussion is omitted from many of the recent 
 European treatises on private international law, it is con- 
 tained in many of the works on municipal law, notably in 
 the numerous explications of the French Code. 
 
 § 17. Domicil in British Jurisprudence. — Turning nOW tO 
 Great Britain, we find that the notion of domicil is of quite 
 recent introduction into the jurisprudence of the countries 
 composing that realm. Indeed, it is asserted that the word 
 itself — so little was it known — did not find its way into 
 English dictionaries until about a half century ago,i although 
 
 law of Holland is substantially the same. 
 Asser et Rivier, op. cit. no. 23. It 
 may be added that among continental 
 writers the doctrine of political nation- 
 ality, as the basis of personal law, has 
 been rapidly gaining ground during the 
 past few years. In this country and 
 Great Britain it never has been recog- 
 nized, and whether it ever will be is, to 
 say the least, very doubtful ; the prin- 
 ciple of domicil being so firmly rooted 
 in our jurisprudence that positive legis- 
 lation would be required to remove it, 
 and to induce the large number of legis- 
 lative bodies, which would have to pass 
 upon the subject, to act would be an 
 undertaking of no small magnitude. 
 
 1 Round on Domicil, pp. 9-11. He 
 says : " The word ' domicil ' is of modem 
 introduction into our language, not be- 
 ing found in dictionaries published as 
 far back as Johnson's ; but in Todd's 
 edition he inserts it, and writes it ' do- 
 micile' with an e, an(i quotes it from an 
 old book called 'Brevint's Saul and 
 Samuel at Endor,' p. 303, where there 
 is this passage: 'This famous domicile 
 was brought with their appurtenances 
 in one night from Nazareth, over seas 
 and lands, by mighty angels, and can, 
 if honoured with a visit, with an oiferiugi 
 
 and with a vow, cure in a moment all 
 diseases.' Todd's edition was published 
 in 1827; but inanea,rlierwork by Mason 
 (1801), entitled ' An Addendum to John- 
 son's Large English Dictionary,' the word 
 'domiciliary' occurs, which he renders 
 as adj., from domicile, French, ' intrud- 
 ing into private houses ; ' and says in a 
 bracket, ' This word is a new offspring 
 of the French Tyranny,' which Todd re- 
 fers to, but seems to plume himself upon 
 having discovered so erudite an author- 
 ity as Brevint for the use of the word 
 'domicile,' which was, in fact, the first 
 use of the French word in an Engli.sh 
 composition, and Brevint was not an 
 Englishman, but a native of Jersey, al- 
 though he graduated at Oxford, and 
 was afterwards Dean of Lincoln ; and 
 therefore, allowing all honor due to Mr. 
 Todd's industry, this I look upon as an 
 accidental use of it, more particularly 
 as the natives of Jersey speak French, 
 and that it did not obtain till the year 
 1830, at the earliest, in common use, ex- 
 cept in America, and not then common, 
 for in 1827 he was put to the necessity 
 of searching for it in such a recon- 
 dite authority. He admits, moreover, 
 that it was not to be found in our 
 'lexicography,' and says, ' Burke uses the 
 
 2 X7 
 
§17-] 
 
 THE LAW OF DOMICIL. 
 
 [chap. I. 
 
 it was used by the courts much earlier. Chief Baron Pollock, 
 speaking in 1864, says : ^ "It is somewhat remarkable that 
 ' domicil ' is now very frequently the subject of discussion in 
 our courts, and as we have more than once observed, the 
 word is comparatively entirely new to the English law, for 
 neither it nor the notion it conveys belongs to anything 
 English. The word 'domicil' is not to be found in Vi- 
 ner's Abridgment, Bacon's Abridgment, Comyn's Digest, or 
 in English law books from Bracton down to Blackstone." To 
 
 Latin word as if he had not known the 
 English.' 
 
 "Vattel, in his 'Law of Nations,' 
 treats of the subject of ' settlement ' in 
 precisely the same manner as ' domi- 
 cil ' is now treated of at page 103 of his 
 work, and as the French word ' domi- 
 cile ' was translated ' settlement ; ' hence 
 we may infer that although the word 
 itself was not used at the time in Eng- 
 land (the middle of the eighteenth cen- 
 tury when he wrote), yet the subject 
 was then discussed among jurists, al- 
 though it had not monopolized so much 
 attention as since. We, however, find 
 the word used as an English, or at all 
 events as a Scotch, word in the Dic- 
 tionary of Decisions for 1813, Lord 
 Eldon's [Elchies' ?] notes, p. 199. 
 
 " In Littleton's Latin Dictionary, he 
 translates it thus, 'domicilium,' domi- 
 colium, oUrinipiov IvavXrjiM, ' a man- 
 sion, a dwelling-house, an aboad ; ' 
 sedes, Cicero. The word ' mansion ' 
 certainly signifies a fixed residence, for 
 although it may be let, yet it is usually 
 something belonging to 'the family,' 
 and likely to be retained as a residence. 
 The next word, ' dwelling-house,' might 
 be any house, so might the word 
 ' abode ; ' but the word ' sedes,' as used 
 by Cicero, probably referred to the 
 villa residences in the vicinity of Rome, 
 that is, a place of retirement, or what 
 we, probably from the same word, call 
 a 'seat,' and there is no doubt that a 
 ' country seat ' usually answers the de- 
 scription of a domicil. In the Ilev. 
 J. G. Wood's very pretty little work, en- 
 titled ' The Common Objects of the Sea 
 Shore,' the following passage ocoui'S at 
 
 18 
 
 p. 115, showing plainly in what sense 
 the word ' domicil ' is taken by a scholar 
 who is not a lawyer : ' These creatures 
 (soft-tailed crabs) are generally called 
 hermit crabs, because each one lives a 
 solitarj' life in his own habitation, like 
 Diogenes in his tub. . . . The species 
 here given is the common hermit crab 
 (Pagurus Bemhardus), and the particu- 
 lar individual is inhabiting a whelk 
 shell, a domicile, that is in great request 
 when the creature grows to any size.' 
 It should be observed, in reference to 
 this passage, that the creatures in ques- 
 tion make the shells of deceased uni- 
 valves their home as long as they an- 
 swer their purpose, and therefore the 
 word ' domicil ' is used by Mr. Wood in 
 the sense of ' home,' which these shells 
 undoubtedly are to the crabs. The 
 word domieilium is used by Grotius, 
 lib. ii. cap. 5, s. 24, where there is this 
 passage : ' Bomanis legibus saltem pos- 
 terioribus domidlium quidem transferre 
 licebat.' The Eoman law here referred 
 to is as follows : ' Munioipes sunt liberti 
 et in eo loco ubi " ipse " domicilium su& 
 voluntate tulerunt, nee aliquod ex hoc 
 origini patroni faciunt prsejudicium et 
 utrobiquenuraeribus adstringuntur.' Di- 
 gest, lib. 1. tit. 1. 'Ad municipalem et 
 de incolis.' Leg. xxii. § 2. In the 
 translation of Grotius by Mr. J. Bar- 
 beyrac, in 1788, the word domieiliwm, 
 is translated ' habitation.' " The above 
 quotation is given tor what it is worth, 
 as containing some matters which are 
 of interest, although not stated with en- 
 tire accuracy. 
 
 2 Re Capdevielle, 2 Hurl. & Colt. 
 985, 1018. 
 
§ 18.] INTRODUCTION, [CHAP. I. 
 
 the same effect is the remark of Lord Campbell in Thom- 
 son V. The Advocate General ^ (1845) : " The truth is, my 
 lords, that the doctrine of domicil has sprung up in this 
 country, very recently, and that neither the legislature nor the 
 judges, until within a few years, thought very much of it." 
 
 § 18. Id. Early English Cases. — The principle of domicil 
 seems to have first made its appearance in both England and 
 Scotland in cases of personal succession. Perhaps Sir Leo- 
 line Jenkins was the first English lawyer to use the term.^ 
 In the reign of Charles II. he speaks of it as " a term not 
 vulgarly known," but holds that the lex domicilii furnishes 
 the correct rule for the distribution of the personal property 
 of deceased persons. Almost a century elapsed after this 
 before the subject was brought to the notice of the courts, at 
 least in any reported cases. But in Pipon v. Pipon^ (1744), 
 and Thorne v. Watkins^ (1750), Lord Hardwicke laid down 
 the law with great positiveness and clearness, holding, in ac- 
 cordance with the now universally received doctrine, that 
 personal property must be distributed according to the law 
 of the decedent's domicil. It is to be observed, however, 
 that while this doctrine was clearly set forth, the term dom- 
 icil was not used by his lordship in either of these cases. 
 The question does not appear to have again arisen * until in 
 the case of Kilpatrick v. Kilpatrick^ (17^87), at the Rolls be- 
 fore Sir Lloyd (afterward Lord) Kenyon, who decided it 
 
 ' 12 Cl. & F. 1, 28. Lord EUentorough speaks of this as 
 
 1 PhilUmore on Domicil, no. 9, p. 8, the first English case where a question 
 
 and nos. 42-44, pp. 28, 29, citing of domicil arose. In it however, na- 
 
 Wynne's Life of Sir Leoline Jenkins, tional character was not distinctly put 
 
 vol. ii. pp. 665-670 and 785. The first upon the ground of domicil, and the 
 
 reported case before the English courts, Roman doctrine above mentioned was 
 
 so far as the writer is aware, in which used rather by way of illustration than 
 
 the subject of domicil is referred to, was authority. 
 
 Scott«. Schwartz, ComynR. 677(1738), "^ Ambler, 25; s. c. Ridg. t. Hard, 
 
 in the Court of Exchequer. It was a 230. 
 case of seizure under the Navigation ' 2 Tes. Sen. 35. 
 Laws, and the question of national char- * But see Burn ■». Cole (1756), Am- 
 
 acter was involved. The subject of bier, 415, as to right to administration, 
 domicil was not particularly discussed, ' Unreported, but cited in argument 
 
 hut the application by the Soman law in Bruce v. Bruce (infra), and Hog v. 
 
 of domicil to the determination of lia- Lashley. The substance of the case is 
 
 bility to municipal burdens was referred stated from these sources by Robertson, 
 
 to. In Bell V. Reid, 1 Maule & S. 726, Pers. Succn. p. 116. 
 
 19 
 
§ 19.] THE LAW OP DOMICIL. [CHAP. I. 
 
 upon the same principles as those relied on by Lord Hard- 
 wicke. It is surprising that the different customs prevailing 
 in the provinces of York and Canterbury did not early give 
 rise to the application of the principle of domicil in cases of 
 personal succession. But in 1801, while the case of Somer- 
 ville V. Somerville ^ was before him, Sir Richard Pepper Arden 
 directed search for cases in which it had been applied to be 
 made in the Spiritual Court and the Court of Chancery, with 
 the result that no such case could be discovered. 
 
 § 18 a. Id. Early Scotch Cases. — Contemporary with the 
 case of Pipon v. Pipon in England was the case of Brown v. 
 Brown ^ (1744) in Scotland, in which the Court of Session con- 
 firmed the decision of the Commissaries of Edinburgh, who had 
 decided " that the deceased. Captain Brown, was origine a 
 Scotsman, and never had any proper or fixed domicil else- 
 where," and that therefore "the succession to said Captain 
 Brown's movable estate is to be regulated by the laws of 
 Scotland," — a recognition of domicil both in principle and 
 in name. In a number of cases before and after this one,^ 
 however, a contrary view was held, and in Morris v. Wright ^ 
 (1785) the Court of Session declared it to be " firmly fixed 
 that the Lex Loci ought to be the rule," and further observed 
 that the doctrine of the case of Brown v. Brown " was ex- 
 ploded by the most eminent lawyers of the time." So widely 
 did the Scotch courts differ from those of England and from 
 the jurists of the Continent. It required, therefore, several 
 decisions of the House of Lords to put the question at rest 
 and settle the law of Scotland upon this point in accordance 
 with that of other civilized countries. 
 
 § 19. Id. Bruce v. Bruce and its Sequents. — The first of these 
 cases, Bruce v. Bruce,^ came up on appeal from Scotland in 
 1790, and was argued at the bar of the House of Lords by 
 
 « 5 Ves. Jun. 750. » Fao. Coll. Morrison, 4616. Eob- 
 
 1 Kilkerran, voce Foreign, No. 1, erfson, op. cit. p. 100. 
 
 p. 199, Falconer, p. 11. Elchies, voce ^ Reported in a note to Marsh o. 
 
 Succession, Decisions, and Notes. Mor- Hutchinson, 2 Bos. & Pul. 229 ; s. c. 
 
 rison. Diet, of Dec. p. 4604. Robertson, Fae. Coll. 25th June, 1788; Morrison, 
 
 Pers. Succn. p. 92. 4617, omitting Lord Thurlow's speech. 
 
 ^ See Robertson, op. cit. o. 6. A simi- It is given at length by Robertson, op. 
 
 lar conflict of opinion existed among the cit- p. 118, and by PhUlimore, op. eit. 
 
 institutional writers of Scotland. lb. Appendix, p. 197. 
 
 20 
 
§ 19.] INTRODUCTION. [CHAP. I. 
 
 advocates of great celebrity, — Sir John Scott (afterwards 
 Lord Eldon) and William Alexander (afterwards Lord Chief 
 Baron) being on one side, and Sir Hay Campbell and Charles 
 Hope (both afterwards Presidents of the Court of Session) 
 on the other. The Court of Session had decided, first, that 
 the decedent Major Bruce (whose domicil of origin was 
 Scotch), being in the service of the East India Company, had 
 his domicil in India (that is, by fiction of law, or at least 
 in legal effect, in the province of Canterbury), and second, 
 that as his effects were all either in England or in India, 
 distribution must be in accordance with the law of England, 
 the locus rei sites. Lord Thurlow, in his opinion delivered at 
 the time of giving judgment in the Appeal, went into a dis- 
 cussion of the grounds of the judgment of affirmance which 
 was pronounced, saying that "the true ground upon which 
 the cause turned was the deceased being domiciled in India," 
 and that therefore the law of England furnished the correct 
 rule of distribution, not because it was the lex loci rei sitae, 
 but because it was the lex domicilii. This case has " ever 
 since been held to have fixed the law of Scotland upon this 
 subject, on the basis of the law of nations." ^ The judgment, 
 however, having been simply an afl&rmance of the decision 
 of the Court of Session, and nothing else appearing upon the 
 record, as the case appears in the Scotch report, its grounds 
 might be misapprehended but for the fortunate preservation 
 of a stenographic report of Lord Thurlow's speech. This 
 celebrated case having been followed in the House of Lords 
 and Court of Chancery during the next five or six years by 
 the equally celebrated cases of Hog v. Lashley,* Balfour v. 
 Scott,* Ommanney v. Bingham,^ Bempde v. Johnstone,® and 
 others, in which not only was the principle of domicil applied, 
 
 2 Eobertson, op. cU. p. 121. inga before the House of Lords in 1792, 
 
 * This case was before the Scotch and the speeches of Lord Eldon in mov- 
 
 Courtof Session and the House of Lords ing judgment in 1802, and again in 
 
 several times. It is reported, Fao. Coll. 1804. 
 
 7th June, 1791, Morrison 4619, and * Fac. Coll. 15 Nov. 1787, Morrison 
 
 again, ib. 16th June, 1795, Morrison 2379, 4617. House of Lords, 11th 
 
 4628. The facts are given at length, April, 1793. Robertson, op. cit. 203. 
 
 and the case discussed by Eobertson, * Eobertson, op. cit. p. 162, and Ap- 
 
 op. cit. pp. 126 et seq. He also gives pendix, p. 468. 
 
 (Appendix, pp. 391-467) the proceed- ^ 3 Ves. Jun. 198. 
 
 21 
 
§ 21.] THE LAW OF DOMICIL. [CHAP. I. 
 
 but its nature and grounds discussed, the attention of the 
 profession in both countries was attracted to the subject, 
 and thenceforward cases involving the principle became 
 numerous. 
 
 § 20. Domicil in American Jurisprudence. — In America the 
 subject of Domicil was first discussed in the case of Guier v. 
 O'Daniel, decided in 1806 in the Court of Common Pleas of 
 Philadelphia County and reported in a note to the case of 
 Desesbats v. Berquier.^ The opinion delivered by Rush, 
 President Judge, recognized and followed the law laid down 
 in Bruce v. Bruce, and the case has ever since been looked 
 upon as a leading one. Like the earlier cases in England 
 and Scotland, it involved the question of the distribution of 
 the personal estate of a decedent. And as in those countries, 
 so in this, — the principle, once having been recognized, was 
 quickly appreciated by the profession and applied to the 
 determination of cases involving a great variety of questions. 
 
 § 21. The division of the United States into a great num- 
 ber of quasi independent States, the vast colonial possessions 
 of Great Britain, the increased and increasing value of per- 
 sonal property, and the greater freedom of migration brought 
 about by improved means of locomotion, have rendered cases 
 involving the principle of domicil of frequent occurrence in 
 those countries. The most powerful minds in the profession 
 on both sides of the Atlantic have been applied to the con- 
 sideration of the subject ; and notwithstanding the occasional 
 conflicts of opinion upon particular points, the general prin- 
 
 1 1 Binney, 335, 349 note. It is relating to the constitution and proof of 
 
 true that prior to this {e. g., in Arnold domicil, has been frequently quoted and 
 
 & Eamsay v. The United Ins. Co. 1 referred to in succeeding cases and in 
 
 Johns. Cas. 363 (1800, opinion by text books, and has, it is believed by 
 
 Kent, J. ), the principle of domicil in a the writer, had not a little influence in 
 
 qualified form (see infra, c. 2, § 26), moulding the American, and to a smaller 
 
 and even under the name of domicil, extent even the British jurisprudence 
 
 had been applied to the determination on the subject. For example, President 
 
 of national character in time of war ; Rush's definition of domicil is substan- 
 
 but it was not through this class of tially that adopted by Phillimore, and 
 
 cases that domicil gained admission to can be traced in many of the cases, 
 
 the generaljurisprudence of this country. American and English. It is also 
 
 Guier v. O'Daniel, however, although adopted, with Phillimore's amendment, 
 
 decided by a court of inferior jurisdio- by Calvo (Manuel de Droit Int. Pub. et 
 
 tion, containing as it does a clear state- Priv. § 197), as "the most exact defini- 
 
 nient of many of the principles of law tion " given. 
 
 22 
 
§ 22.J INTRODUCTION. [CHAP. I. 
 
 ciples of the Law of Domicil have been explicated with con- 
 siderable clearness, and a system has been built up differing 
 In some respects from the doctrine of the Eoman Juris- 
 consults and the modern Civilians. Between the British and 
 American authorities, however, there is, except in a few par-^ 
 ticulars, a close correspondence, brought about in great part, 
 we are glad to believe, by the influence of the writings of 
 that eminent judge and accomplished jurist, Judge Story. 
 
 §22. Bibliography. — There are in the English language 
 but three substantive treatises upon the Law of Domicil. 
 
 First. " The Law of Domicil, by Robert Phillimore, Advo- 
 cate in Doctors Commons, and Barrister of the Middle Temple : 
 London, 1847." Reprinted in " The Law Library," Philadel- 
 phia, 1847. This a work of great learning and industry, in 
 which are collected, perhaps, all the English cases decided 
 up to that time, together with some of the American cases 
 and with copious references to foreign authorities. An Ap- 
 pendix contains extracts relating to the subject of Domicil 
 from the writings of Menochius, Mascardus, Pothier, Byn- 
 kershoek, and Cochin, and from the French and Sardinian 
 Codes, together with the judgments in the leading cases of 
 Bruce v. Bruce, Bempde v. Johnstone, Somerville v. Somer- 
 ville, and Guier v. O'Daniel. Altogether it is a very valuable 
 book, and has always been cited with the greatest respect. 
 This work was subsequently incorporated bodily, and with 
 scarcely any additions, in the fourth volume of the work by 
 the same author on International Law, which has run through 
 several editions ; the second edition of the fourth volume 
 appearing in 1874. It is to be regretted that this learned 
 author and distinguished judge did not see proper to rewrite 
 his exposition of this subject, in view of the large number of 
 cases which had appeared in the interim, or at least to in- 
 corporate the most important of them into the body of his 
 text. 
 
 Second, " A Treatise on the English Law of Domicil, by 
 Oliver Stephen Round, Esq., of Lincolns Inn, Ban-ister at Law: 
 London, 1861, 16mo, pp. 124." This does hot pretend to be 
 either an exhaustive or an accurate treatise, but was written, 
 as the preface tells us, " chiefly in vacation, without the aid of 
 
§ 23.] THE LAW OP DOMICIL. [CHAP. I. 
 
 books, but of notes only collected at spare moments." The 
 aim of the author seems to have been rather to " touch upon " 
 every " branch of the subject " than either to collect all the 
 cases or to weave them into a systematic exposition. The 
 work is but little known, and is to be found in but few 
 libraries in America. It has been cited in only several 
 English cases, and does not seem to be relied upon as an 
 authority. 
 
 Third. " The Law of Domicil as a Branch of the Law of 
 England, stated in the Form of Rules, by A. V. Dicey, B. C. L., 
 Barrister at Law, and formerly Fellow of Trinity College, 
 Oxford : ^ London, 1879." This is a clear and systematic 
 discussion of the subject exclusively from the standpoint of 
 an English lawyer; and notwithstanding the almost entire 
 absence from it of any notice of American cases, the work is 
 a valuable one to American lawyers because, among other 
 reasons, of its excellent analysis of fundamental notions. 
 The author does not, however, limit himself to the considera- 
 tion of domicil per se, but devotes more than one half of his 
 space to an examination into its legal effects. His work is 
 thus substantially a treatise on the Conflict of Laws from the 
 standpoint of domicil. 
 
 Another work may be here mentioned, although it considers 
 but a narrow branch of our subject ; namely, " A Treatise on 
 the Domicil of Englishmen in France, by Henry W. Cole : 
 London, 1857." It collects and discusses with clearness and 
 ability the authorities, both French and English, which had 
 appeared up to the date of its publication upon the subject 
 of the acquisition of domicil by foreigners in France. The 
 author appears to have had some special qualification by 
 reason of his experience in litigation involving the subject- 
 matter of his treatise ; and although this might be supposed 
 to bias somewhat his opinions and to detract from his judg- 
 ment while adding to his information, yet his statements 
 are fair, and his conclusions are given without apparent 
 partisanship. 
 
 § 23. Each of the several treatises in the English language 
 
 1 Since Professor of Law at Oxford. 
 24 
 
§ 23.J INTRODUCTION. [CHAP. I. 
 
 on the Conflict of Laws or Private International Law con- 
 tains a chapter on Domicil. 
 
 The earliest (with the exception of Henry on Foreign Law i 
 and Livermore on the Contrariety of Laws,^ which is indeed 
 in size only a tract, and, although containing much that is 
 suggestive, is neither a full nor a systematic exposition of the 
 subject of the Conflict of Laws) is Mr. Justice Story's " Com- 
 mentaries on the Conflict of Laws," which originally appeared 
 in 1834, and has run through eight editions. Chapter III. is 
 devoted to a discussion of National Domicil, and is by far the 
 most lucid exposition of the subject in the English language. 
 It has done more than any other work to bring into harmony 
 the decisions of the courts on the subject, and in a large 
 proportion of the cases on both sides of the Atlantic has been 
 cited and relied upon by both counsel and court. Owing, 
 however, to the plan of the work, it was possible only to state 
 conclusions and refer to authorities, without entering into any 
 minute discussions. 
 
 Four years later appeared, in England, William Surge's 
 learned " Commentaries on Foreign and Colonial Law," in 
 four large volumes. This work is a great storehouse of pro- 
 found and accurate information upon the subject expressed 
 in the title. It is unfortunately inaccessible to most American 
 lawyers. Chapter II. discusses the subject of Domicil with 
 great learning and ability, in the light of the foreign authori- 
 ties principally. 
 
 Following this in England were the treatises of "Westlake,^ 
 Phillimore, and Poote * on Private International Law, in each 
 of which the subject of Domicil has been separately considered. 
 And in this country has appeared the well-known work of 
 Dr. "Wharton on the Conflict of Laws,^ which has passed 
 
 1 See infra, note 7. substantially a new work, being entirely 
 
 ^ " The Contrariety of the Positive rewritten, and as the author says in his 
 
 Laws of Different States and Nations, preface, differs in many points from that 
 
 by Samuel Livermore : New Orleans, published in 1858, to which it stands in 
 
 1828." It contains no discussion of lieu of a new edition. 
 
 domicil. * "A Concise Treatise on Private 
 
 ^ There are two editions of Westlake, International Jurisprudence, based on 
 
 the first appearing in 1858, republished the Decisions in the English Courts : 
 
 in "The Law Library," Philadelphia, London, 1878." 
 
 1859. The second, appearing in 1880, is s "A Treatise on the Conflict of 
 
 25 
 
§23.] 
 
 THE LAW OF DOMICIL. 
 
 [chap. I. 
 
 through several editions, and which also devotes considerable 
 space to the discussion of our subject. To these may be 
 added the English translation by Guthrie of Savigny's volume 
 on the Conflict of Laws,^ where the subject of Domicil is 
 considered at some length, with the historical and exegetical 
 accuracy and learning which characterizes the writings of 
 that " prince of modern jurists." 
 
 This list may be still further increased by adding a large 
 number of works on special subjects to which the principle 
 of domicil is more or less applicable.'' Particular mention, 
 however, should not be omitted of the excellent collection 
 
 Laws, or Private International Law : 
 Philadelphia," 1st ed. 1872, 2d ed. 1881. 
 
 ^ This is the eighth volume of Savig- 
 ny's " System des heutigen Romischen 
 Eechts," translated by William Guthrie, 
 Advocate, nnder the name of " A Trea- 
 tise on the Conflict of Laws and the 
 Limits of their Operation in respect of 
 Place and Time : Edinburgh," 1st ed. 
 1869, 2d ed. 1880. 
 
 ' In the following works in the 
 English language will be found discus- 
 sions, more or less full, of the subject 
 of Domicil : ^ 
 
 Amould on Marine Insurance, 2d 
 Am. ed. ch. 5, § 2, art. 2 ; 6th Eng. 
 ed. (by Maglachlan), vol. i. ch. 3, pp. 
 135-145. 
 
 Bishop on Maniage and Divorce, vol. 
 ii. bk. 2, chs. 7, 9, §§ 116-131. 
 
 Bouvier's Institutes of American Law, 
 vol. i. bk. 1, pt. 2, t. 4. 
 
 Bouvier's Law Dictionary, verb. Dom- 
 icil. 
 
 Duer on Marine Insurance, vol. i. 
 lect. 5. 
 
 Encyclopedia Americana, verb. Domi- 
 cil. This article, by Dr. Francis Lieber, 
 is a valuable one, and was greatly relied 
 upon by Story, in the preparation of the 
 chapter on National Domicil contained 
 in his work on the Conflict of Laws. 
 
 Flood on Wills, pp. 233 et seq. 
 
 Eraser on Husband and Wife, vol. ii. 
 pt. 7, ch. 1. 
 
 Henry on Foreign Law, Appendix A. 
 This was the first treatise (1823) on the 
 Conflict of Laws in the English Ian- 
 
 26 
 
 guage, and had its origin in the case of 
 Odwin V. Forbes, decided by the court of 
 Demerara, over which the learned au- 
 thor presided. The book is particularly 
 valuable with respect to the subject of 
 Domicil, because of the opinions which 
 it collects of various eminent Dutch jur- 
 ists, such as Corvinus, Grotius, De Witt, 
 Groenewgen, and others. These opin- 
 ions are taken from the " Hollandsche 
 Consultatien " and the "Nieuw Neder- 
 lands Advys Boek," and, so far as they 
 were originally written in Dutch, trans- 
 lated into English. 
 
 Jarman on Wills, vol. 1. ch. 1. (See 
 particularly the notes contained in the 
 several American editions.) 
 
 Kent's Commentaries on American 
 Law, vol. ii. pp. 227 note, and 430 note. 
 The discussion of the subject of Domi- 
 cil by this learned writer is brief, being 
 confined to a few pages. 
 
 Kneeland on Attachments, ch. 10. 
 
 McLaren on Wills, vol. i. ch. 1. 
 
 Parsons on Contracts, vol. ii. pt. 2, 
 ch. 2, § 4. 
 
 Parsons on Maritime Law, bk. 2, 
 ch. 1. 
 
 Parsons on Marine Insurance, vol. i. 
 ch. 2, § 2. 
 
 Kedfield on Wills, vol. iii. ch. 1, 
 §2. 
 
 Theobald on Wills, ch. 1. 
 
 Wait's Actions and Defences, vol. ii. 
 ch. 58 {verb. Domicil). 
 
 Williams on Executors, pt. 3, bk. 
 4, ch. 1, § 5. (See particularly the 
 American notes.) 
 
§2i.J 
 
 INTRODUCTION. 
 
 [chap. I. 
 
 of English and American authorities and discussion of the 
 subject contained in the first volume of Hare and "Wallace's 
 American Leading Cases. 
 
 § 24. Among the works of continental writers treating 
 solely or largely of Domicil may be mentioned Lauterbach's 
 Dissertatio de Domicilio, and Thomasius' Tractatio de Vaga- 
 bundo ; and in French, Desquiron's Traits du Domicile et Ab- 
 sence, and the several Theses pour le Doctorat, of Ancelle, 
 Chavanes, Eoussel, and De Fongaufier. The subject is dis- 
 cussed at greater or less length by many of the older as well 
 as later continental writers. A list of the most important is 
 given below.^ 
 
 1 Among the older writers may he 
 mentioned the following: — 
 
 Barbosa, De Offio. Episcopi, pt. 2, 
 all. 4. 
 
 Bartolus, In Cod. 1. 10, t. 39. 
 
 Bonhier, Obser. sur la Cout. du Duchi 
 de Bourgogne, c. 21, 22. 
 
 Burgundus, Ad Consuet. Fland. 
 Tract. 2, no. 32 et seq. 
 
 Bynkershoek, Qusestiones Juris Pri- 
 vati, I. 1, c. 16. 
 
 C-irpzovius, Processus Juris, t. 3, a. 1. 
 Forum competens, etc. 
 
 Christenseus, Decis. Curiae Belgic. 
 vol. T. decis. 31 et seq. In Cod. 1. 10, 
 t. 38, 39. 
 
 Corvinus, Jurisprud. Bom. Summa- 
 rium, pt. 2. In Cod. 1. 10, t. 39. 
 
 Cujas, In Cod. 1. 10, t. 38, 39, and 
 elsewhere. 
 
 D'Argentre, Consuet. Brit. art. 449. 
 
 Denizart, Collection de Decisions, 
 etc., verb. Domicile. The edition re- 
 ferred to throughout this work is the 
 seventh (1771). The references by 
 Story and Phlllimore appear to be to 
 earlier editions. 
 
 Domat, Droit Pub. 1. 1, t. 16, § 3. 
 
 Donellus, De Jure CiviU, 1. 17, 
 c. 12. 
 
 Gail, Practicar. Observat. 1. 2, obs. 
 35, 36. 
 
 Mascardus, De Probationibus, con- 
 clus. 535. 
 
 Menochius, De Arbitratn Judio. 1. 2, 
 cent. 1, casus 86. 
 
 Pothier, Ad Pand. 1. 50, t. 1. 
 
 Pothier, Introd. G^n. aux Cout. 
 d'Orl&ns. 
 
 Struvius, Ad Pand. 1. 5, t. 1, De 
 judiciis. 
 
 Van Leeuwen, Censura Forensis, 1. 3, 
 u. 11, no. 5. 
 
 Voet, John, Ad Pand. 1. 5, t. 1. 
 
 Zangerus, De Exceptionibus, pt. 2, 
 c. 1, nos. 9 et seq. 
 
 Besides the passages indicated, there 
 occur in.many of the above-named works 
 other passages in which the subject of 
 Domicil is both discussed and applied. 
 
 Among the works of writers of the 
 present century, the following may be 
 mentioned as containing important dis- 
 cussions of Domicil : — 
 
 Gliick, Ausfiirliche Erlautevung der 
 Pandecten, th. 6, bk. 5, t. 1, § 512 
 et seq. 
 
 Merlin, Repertoire, etc. de Jurisprud. 
 verh. Domicil, Declinatoire, and other 
 titles. 
 
 Calvo, Manuel de Droit Int. Pub. et 
 Priv^, ch. 8, sec. 4, § 197 et seq. 
 
 Calvo, Dietionnaire de Droit Int. 
 Pub. et Priv^, verb. Domicil. 
 
 Brocher, Cours de Droit Int. Priv^, 
 1. 1, t. 1, c. 6. 
 
 Discussions, more or less extended, 
 of Domicil are to be found in vol. i. of 
 each of the following commentaries on 
 the French Code : — 
 
 Aubry et Rau, Cours de Droit Civil 
 Franfais. 
 
 27 
 
24.] 
 
 THE LAW OP DOMICIL. 
 
 [chap. I. 
 
 •Demante, Cours Analytique du Code 
 Civil. 
 
 Demolombe, Cours de Code Napol&n. 
 
 Duranton, Cours de Droit Fran^ais. 
 
 Marcad^, Explication, etc. du Code 
 Civil. 
 
 Mass^ et Verg^ sur Zachariae, Le 
 Droit Civil Franjais. 
 
 Mourlon, Bepetitions Ecrites sur le 
 Code Napoleon. 
 
 Proudhon, Traiti sur I'Etat des Per- 
 sonnes. 
 
 28 
 
 Toullier, Le Droit Civil Fraii5ais. 
 
 VaUette, Cours de Code Civil ; also 
 sur Proudhon, supra. 
 
 Zachariae, Handbuch des Franzb- 
 sischen Civilreehts. 
 
 Also Laurent, Principes de Droit 
 Civil Franjais, t. 2 ; and Ortolan, Ex- 
 plications Histoiiques des Institutes, 
 t. 1. 
 
 The various French works on Civil 
 Procedure, etc., discuss the subject of 
 Domicil. 
 
§ 25.J USES OP DOMICIL. [CHAP. II. 
 
 CHAPTER II. 
 
 USES OP DOMICIL. 
 
 § 25. General Remarks. — Before entering upon a considera- 
 tion of the general subject of domicil, — its definition, nature, 
 constitution, and change, and the ordinary evidence by which 
 its change is shown, etc., — it will be well to take a brief survey 
 of the general field — or perhaps it would be more accurate to 
 say the several fields — of jurisprudence in which it is usually 
 applied for the determination of legal relations. To do this 
 with any degree of detail would itself require a volume, and 
 moreover such a discussion would more naturally and logically 
 follow than precede the consideration of domicil per se. It is 
 the object of the writer, however, here only to outline briefly 
 the various uses to which in American and British jurispru- 
 dence the principle of domicil is practically applied, for the 
 purpose, if possible, of approximately estimating the values as 
 authorities of the several classes of cases hereafter to be cited 
 in the body of this work. From this chapter therefore the 
 continental authorities will be, in the main, omitted, and the 
 several topics will be discussed as succinctly as possible, with 
 references only to the leading cases and text-books, to which 
 the learned reader may refer for more elaborate discussion 
 and fuller lists of authorities. 
 
 § 26. Domicil in Public International Law ; National Charac- 
 ter. — In general, the determination of the national character 
 of a person, as subject, enemy or neutral, in time of war, 
 depends upon his domicil ; ^ "the general principle being that 
 
 1 The Vigilantia, 1 C. Bob. 1 ; The Maule & S. 726 ; Livingston v. Mary- 
 
 Emden, id. 17 ; The Harmony, 2 id. land Ins. Co., 7 Cranch, 506, 542, per 
 
 322 ; The Indian Chief, 3 id. 22 ; The Stoiy, J. ; The Venus, 8 id. 253 ; The 
 
 Keptunus, 6 id. 403 ; Marryat v. "Wilson, Frances (Gillespie's Claim), id. 363 ; s. c. 
 
 1 Bos. & P. 430, affirming Wilson v. before Story, J.,.l Gall. 614 ; The Mary 
 
 Manyat, 8 T. B. 31 ; Bell v. Beid, 1 and Susan, 1 Wheat. 46 ; The Antonia 
 
 29 
 
§26.] 
 
 THE LAW OP DOMICIL. 
 
 [chap, II. 
 
 every person is to be considered as belonging to that country 
 where he has his domicil, whatever may be his native or 
 adopted country." ^ This principle is usually applied in prize 
 cases,* in the determination of which, however, peculiar con- 
 siderations prevail. The object of prize capture in war is 
 to cripple the resources of the enemy, and thus indirectly 
 abridge fighting ,by depriving him of the sources of his wealth 
 and the means of supplying himself with the sinews of war. 
 To attain this object, not only is the property of every person 
 domiciled within the territory of the enemy held liable to 
 capture,* but also the products of the hostile soil* and all 
 
 Johanna, id. 159 ; The Friendschaft 
 (Winn et al., claimants), 3 id. 14 ; 
 United States v. Guillem, 11 How. 
 47 ; The Prize Cases, 2 Black, 635 ; 
 The ■William Bagaley, 5 WaU. 377; 
 Mitchell V. United States, 21 id. 350 ; 
 United States v. Farragut, 22 id. 406 ; 
 Desmare v. United States, 93 U. S. 605 ; 
 The Ann Green, 1 Gall. 274; The Joseph, 
 id. 545 ; Johnson v. Twenty-one Bales, 
 2 Paine, 601 ; s. c. Van Ness, 5 ; United 
 States V. Penelope, 2 Pet. Ad. 438 ; Ro- 
 gers V. The Amado, 1 Newh. 400 ; Elhers 
 V. United Ins. Co., 16 Johns. 128 ; Law- 
 rence's Wheaton Int. L. 2d ed. p. 557 
 et seq. ; Kent's Comm. vol. i. lect. 4 ; 
 Phillimore, Int. L. vol. iii. pp. 128, 603 ; 
 Twiss, Law of Nations in 'Time of War, 
 § 152 et seq. ; Aniould, Mar. Ins. ch. 
 5, § 2, art. 2 ; Duer, Mar. Ins. voL i. 
 lect. 5 ; Parsons, Mar. Ins. vol. i. ch. 
 2, § 2 ; Id. Maritime L. bk. 2, ch. 1. 
 In Livingston v. Maryland Ins. Co., 
 supra, Story, J., thus clearly states the 
 doctrine: "It is clear, by the law of 
 nations, that the national character of 
 a person, for commercial purposes, de- 
 pends upon his domicil. But this must 
 be carefully distinguished from the na- 
 tional character of his trade. For the 
 party may be a belligerent subject, and 
 yet engaged in neutral trade ; or he may 
 be a neutral subject and yet engaged in 
 hostile trade. Some of the cases respect- 
 ing the colonial and coasting trade ot 
 enemies have turned upon this distinc- 
 tion. But whenever a person is imia 
 
 30 
 
 fide domiciled in a particular country, 
 the character of the country irresistibly 
 attaches to him. The rule has been ap- 
 plied with equal impartiality in favor 
 and against neutrals and belligerents. 
 It is perfectly immaterial what is the 
 trade in which the party is engaged, or 
 whether he be engaged in any. If he 
 be settled bonajide in a country with the 
 intention of indefinite residence, he is, 
 as to all foreign countries, to be deemed 
 a subject of that country. Without 
 doubt, in order to ascertain this domicil, 
 it is proper to take into consideration 
 the situation, the employment, and the 
 character of the individual. The trade 
 in which he is engaged, the family that 
 he possesses, and the transitory or fixed 
 character of his business, are ingredients 
 which may properly be weighed in de- 
 ciding on the nature of an equivocal resi- 
 dence or domicil. But when once that 
 domicil is fixed and ascertained, all other 
 circumstances become immaterial." 
 
 " Phillimore, Int. L. 1st ed. vol. iii. 
 p. 603. . 
 
 * Collaterally it is applied in other 
 cases also, particularly in cases of 
 marine insurance. Mari-yat v. Wilson, 
 supra; Bell v. Reid, supra; Living- 
 ston V. Maryland Ins. Co., supra; 
 Fibers v. United Ins. Co., supra ; Duer, 
 Mar. Ins. , siipra ; Amould, id. , sitpra ; 
 Parsons, id., supra; Id. Maritime L., 
 supra. 
 
 * Authorities cited in note 1, supra, 
 5 The Phoenix, 5 C. Rob. 21 ; The 
 
§ 26.] USES OF DOMICIL. [CHAP. II. 
 
 interests and property in or connected with houses of trade 
 established within the hostile territory," no matter to whom 
 they may belong, whether friend, enemy, or neutral. Cases of 
 this description are usually decided in the courts of the bel- 
 ligerents themselves, and at times and under circumstances 
 which preclude the fullest investigation qf all the facts bear- 
 ing upon the ownership of the thing captured, and particu- 
 larly of the facts bearing upon the animus of the claimant. 
 For all these reasons, and because, moreover, there are great 
 temptations, and great possibilities also, for the commission 
 of frauds by claimants, prize courts have leaned strongly in 
 favor of captors, and principles have been applied by them 
 which do not prevail in other classes of cases. 
 
 The development of the law of prize as it has been applied 
 by the British and American courts is due mainly to the 
 learned and luminous judgments of Lord Stowell at the close 
 of the last and the beginning of the present century, and 
 the leaning of the mind of that great jurist was, as has been 
 pointed out by high authority, strongly in favor of captors.' 
 As a single instance may be given his remarks, in The Har- 
 mony ,8 upon the subject of length of residence as indicative 
 of domicil, in which he propounds doctrine wholly at variance 
 
 Vrow Anna Catharina, id. 161 ; Thirty the captors. Eesldenee, for example, 
 
 Hogsheads of Sngar v. Boyle, 9 C ranch, in a belligerent country will condemn 
 
 191 ; The Gray Jacket, 5 Wall. 342 ; 1 the share of a neutral in a house trading 
 
 Kent's Comm. p. 74 ; Lawrence's Whea- in a neutral country ; but residence in 
 
 ton, 2d ed. p. 676 et seg. ; Pliillimore, a neutral country will not protect the 
 
 Int. L. 1st ed. vol. iii. p. 607. share of a belligerent or neutral in a 
 
 ' The Vigilantia, 1 C. Rob. 1 ; The commercial house established in a bel- 
 
 Portland, 3 id. 41 ; The Antonia Jo- ligerent country. In a great maritime 
 
 hauna, 1 Wheat. 159 ; The Friendschaft country, depending on its navy for its 
 
 (Moreira, claimant), 4 id. 105 ; The glory and its safety, the national bias 
 
 Cheshire, 3 Wall. 231 ; The San Jose is perhaps so entirely in this direction, 
 
 Indiano, 2 Gall. 268 ; 1 Kent's Comm. that the judge, without being conscious 
 
 p. 80 ; FhUlimore, Int. L. vol. iii. of the fact, must feel its influence. How- 
 
 p. 605. ever this may be, it is a fact of which I 
 
 ' Marshall, C. J., in The Venus, 8 am fully convinced ; and on this account 
 Cranch, 253, 299, said : " I respect Sir it appears to me to be the more proper 
 William Scott as I do every truly great to investigate rigidly the principles on 
 man, and I respect his decisions ; nor which his decisions have been made, 
 should I depart from them on light and not to extend them where such ex- 
 grounds ; but it is impossible to consid- tension may produce injustice." 
 er them attentively without perceiving 8 2 C. Rob. 322. See further on this 
 that his mind leans strongly in favor of subject, infra, § 386 et seq, 
 
 ^1 
 
§26.] 
 
 THE LAW OF DOMICIL. 
 
 [chap. II. 
 
 with the views of almost all of the courts aud writers who 
 have spoken on the subject of time in its relation to dtJmicil 
 considered with reference to general purposes. From these 
 and other considerations it is apparent that cases of national 
 character in time of war should be used with the greatest 
 caution upon the general subject of domicil.^ 
 
 9 In Hodgson v. De Beauohesne, 12 
 Moore P. C. C. 285, 313, Dr. Lushington 
 says: "Various meanings have teen 
 affixed to the word ' domlcil,' — domicil 
 jure gentium ; domicil hy the municipal 
 law of any country, and we may add dom- 
 icil during war, as it may govern the 
 rights of helligereut States. This spe- 
 cies of domicil is, it is true, in one sense 
 domicil jure gentium; but in many par- 
 ticulars it is governed by very different 
 considerations, and decisions belonging 
 to it must be applied with great caution 
 to the questions of domicil independent 
 of war." In The Baltica, Spinks' Prize 
 Cas. 264, 266, the same distinguished 
 judge said : " Much has been said as to 
 the domicil of origin of Mr. Sorensen, Jr. 
 I briefly advert to it, though I do not 
 think it has any strong bearing on the 
 case, for the question before me is that 
 of mercantile national character, which 
 is governed by rules and by authorities 
 particularly applicable to it alone. I 
 think I should only confuse the case by 
 following it up in reference to other 
 cases of domicil." The same caution 
 is repeated by various writers on the 
 subject of domicil. See, e. g.. West- 
 lake, 2d ed. p. 285 ; Wharton, § 70 ; 
 Dicey, p. 341 et seq. 
 
 The last-named wiiter thus notices 
 the differences between (to use the 
 terminology adopted by him) "com- 
 mercial domicil " and " civil domi- 
 cil " : " The nature of the trading resi- 
 dence or commercial domicil, which 
 determines a person's friendly or hos- 
 tile character in time of war, may be 
 made clear by comparing such com- 
 mercial domicil with the domicil prop- 
 erly so called, which forms the sub- 
 ject of this treatise, and is, in this note, 
 termed, for the sake of distinction, a 
 
 32 
 
 civil domicil. Each domicil is a kind 
 of residence, each bears a close resem- 
 blance to the other, but they are distin- 
 guished by marked differences. 
 
 "I. Resemblance of Commercial Dom- 
 icil to Civil Domieil, — A trading or 
 commercial domicil bears so close a re- 
 semblance to a civil domicU that it is 
 often described in language which ap- 
 pears to identify the two kinds of domi- 
 cil. Thus Amould writes of the domicil 
 which determines a person's character in 
 time of war, ' That is properly the domicil 
 of a person where he has his true, fixed, 
 permanent home and principal establish- 
 ment, in which when present he has the 
 intention of remaining (animus ma- 
 nendi), and from which he is never ab- 
 sent without the intention of returning 
 [animus revertendi) directly he shall 
 have accomplished the purpose for which 
 he left it ' ( 1 Amould, Marine Insurance, 
 3d ed. p. 121), whilst Duer states with 
 regard to the national character of a 
 merchant: 'It is determined solely by 
 the place of his permanent residence. 
 In the language of the law, it is fixed 
 by his domicil. He is the political mem- 
 ber of the country into which, by his 
 residence and business, he is incorpo- 
 rated ; a subject of the government that 
 protects him in his pursuits that his in- 
 dustry contributes to support, and of 
 whose national resources his own means 
 are a constituent part' (1 Duer, p. 495). 
 Nor are the points in which the two 
 kinds of domicil resemble each other 
 hard to discern. They are each kinds 
 or modes of residence. The constituent 
 elements of each are, first, 'residence ;' 
 secondly, a 'purpose or intention' (on 
 the part of the person whose domicil is 
 in question) 'with regard to residence.' 
 In spite, however, of the terms used by 
 
§ 26.] USES OP DOMICIL. [CHAP. II. 
 
 In this country the decisions of Lord Stowell have usually 
 
 higli authorities, and of the undoubted 
 likeness between the two kinds of domi- 
 cil, they are different in essential par- 
 ticulars. 
 
 "II. Differences hdvieen Civil and 
 Commercial Dmnidl. — The fundamental 
 distinction between a civil domicil and 
 a commercial domicil is this : A civil 
 domioil is such a permanent residence 
 in a country as makes that country a 
 person's home and renders it, therefore, 
 reasonable that his civU rights should 
 in many instances be determined by the 
 laws thereof. A commercial domicil, 
 on the other hand, is such a residence 
 in a country for the purpose of trading 
 there as makes a person's trade or busi- 
 ness contribute to or form part of the 
 resources of such country, and renders 
 it therefore reasonable that his hostile, 
 friendly, or neutral character should be 
 determined by reference to the character 
 of such country. When a person's civil 
 domicil is in question, the matter to be 
 determined is whether he has or has not 
 so settled in a given country as to have 
 made it his home. When a person's 
 commercial domicil is in question, the 
 matter to be determined is whether 
 he is or is not residing in a given 
 country with the intention of continu- 
 ing to trade there. From this funda- 
 mental distinction arise the following 
 differences : (i.) As to residence. — Resi- 
 dence in a country is, in general, prima 
 fade evidence of a person having there 
 his civil domicil, but it is only^ima 
 fade evidence, the effect of which may 
 be quite got rid of by proof that a per- 
 son has never lived in the country with 
 the intention of making it his perma- 
 nent home ; but residence is far more 
 than prima fade evidence of a person's 
 commercial domicil. In time of war a 
 man is taken to be domiciled for com- 
 mercial purposes in the country where 
 he in fact resides ; and if he is to escape 
 the effect of such presumption, he must 
 prove affirmatively that he has the in- 
 tention of not continuing to reside in 
 such country. A long period further of 
 
 residence, which, as regards civil rights, 
 is merely evidence of domioil, might, it 
 would seem, be absolutely conclusive in 
 determining national character in time 
 of war (1 Duer, pp. 500, 501 ; The Har- 
 mony, 2 C. Eob. 322). (ii.) As to inten- 
 tion. — The intention or animus which, 
 in combination with residence, consti- 
 tutes a civil domicil, is different from 
 the intention or animus which, together 
 with residence, makes up a commercial 
 domicil. 
 
 " The intention which goes to make 
 up the existence of a civil domicil is the 
 present intention of residing perma- 
 nently, or for an indefinite period, 
 in a given country. The intention 
 which goes to make up the existence 
 of a commercial domicil is the inten- 
 tion to continue residing and trading 
 in a given countiy for the present. 
 The former is an intention to be settled 
 in a country and make it one's home ; 
 the latter is an intention to continue re- 
 siding and trading there. Hence, on 
 the one hand, a person does not acquire 
 a civU domicil by residence in a country 
 for a definite purpose or period (pp. 80, 
 81, ante ),and cannot by residence in one 
 country, e. g. France, get rid of a domi- 
 cil in another, e.g. England, if he retains 
 the purpose of ultimately returning to 
 England as his home ; while, on the 
 other hand, the intention 'which the law 
 attributes to a person residing in a hos- 
 tile country, is not disproved by evidence 
 that he contemplated a return to his own 
 country at some future period. If the 
 period of his return is wholly uncertain, 
 if it remains in doubt at what time, if 
 at all, he will be able to accomplish the 
 design, the design, however seriously 
 entertained, will not avail to refute the 
 legal presumption. A residence for an 
 indefinite period is, in the judgment 
 of law, not transitory, but permanent. 
 Even when the party has a fixed inten- 
 tion to return to his own country at a 
 certain period, yet, if a long interval of 
 time — an interval not of months, but of 
 years — is to elapse before his removal 
 
 3 33 
 
§26.] 
 
 THE LAW OF DOMICIL. 
 
 [chap. II. 
 
 been followed, although not entirely without protest in some 
 
 is to be efiFected, no regard will be had to 
 an intention of which the execution is so 
 long deferred ' {1 Duer, pp. 500, 501). 
 
 "D., domiciled in England, goes to 
 British India with the full intention of 
 residing there till he has made his for- 
 tune in trade, and of then returning to 
 England, where he has his domieil of 
 origin. He resides in India for twenty 
 years. He retains his English civil dom- 
 ieil. Suppose, however, that D., under 
 exactly similar circumstances iu every 
 other respect, takes up his residence not 
 in British India, but in the Portuguese 
 settlement in India, and after war has 
 broken out between England and Portu- 
 gal, continues to reside and trade in the 
 Portuguese settlement, though still re- 
 taining his intention of ultimately re- 
 turning to England. D., thereupon, ac- 
 quires a Portuguese commercial domieil. 
 
 " (iii.) As to Abamdonment. The rules 
 as to abandonment are different. A civil 
 domieil once acquired can be changed 
 only by complete abandonment iu fact 
 of the country where a person is 
 domiciled (In Goods of Eaffenel, 82 
 L. J. P. & M. 203). The inten- 
 tion to change, even if accompanied 
 by steps for carrying out a change, 
 wiU not, it would seem, produce a 
 change as long as the person whose 
 domieil is in question continues in fact 
 to reside in the country where he has 
 been domiciled. 
 
 ' ' A commercial domieil iu time of war 
 can, it would seem, be changed, under 
 some circumstances, by the intention to 
 change it, accompanied by steps taken 
 for the purpose of effecting a change. 
 ' The native national character, that 
 has been lost or partially suspended 
 by a foreign domieil, easily reverts. 
 The circumstances by which it may be 
 restored are much fewer and slighter 
 than those that were originally neces- 
 sary to effect its change. It adheres to 
 the party no longer than he consents to 
 bear it. It is true, his mere intention 
 to remove, not manifested by overt 
 acts, but existing secretly in his own 
 
 34 
 
 breast, ... is not sufficient to efface 
 the character that his domieil has im- 
 pressed ; something more than mere 
 verbal declarations, some solid facts, 
 showing that the party is in the act of 
 withdrawing, is always necessary to be 
 proved ; stiU, neither his actual return 
 to his own country, nor even his actual 
 departure from the territories of that in 
 which he has resided, is indispensable ' 
 (1 Duer, pp. 514, 515). 
 
 " (iv.) As to Domieil by Operation of 
 Law. — It may fairly he doubted whether 
 the rules as to domieil by operation of 
 law, e. g., in the case of persons who have 
 in fact no home, or of dependent persons, 
 which play so large a part in the law of 
 civil domieil, can be without consider- 
 able limitations applied to the ascertain- 
 ment of commercial domieil. D., for 
 example, is a French subject, whose 
 domieil of origin is English. He has 
 an acquired domieil in France. Both 
 France and America declare war against 
 England. D. thereupon leaves France, 
 intending to settle in New York. He 
 resumes during the transit from one 
 country to another his domieil of ori- 
 gin ; but it can hardly be supposed 
 that he is not during such transit an 
 alien enemy. D., again, is an infant, 
 OT a married woman, canying on a 
 commercial business on his, or her, 
 own account in France during a war 
 with England. It can hardly be main- 
 tained that the fact of the father in the 
 one case, or the husband in the other, 
 having an English domieil and being 
 resident in England, will free D. from 
 the character of an alien enemy. 
 
 "(v.) As to Special Rules. — There 
 are one or two rules as to commercial 
 domieil which can have no application to 
 an ordinary civil domieil. Thus, accord- 
 ing to American decisions, at least, an 
 American citizen (and the same principle 
 would perhaps be applied by English 
 courts to British subjects) cannot, by 
 emigration from his own country during 
 the existence of hostilities, acquire such 
 a foreign domieil as to protect his trade 
 
§26.] 
 
 USES OF DOMICIL. 
 
 [CHAP. II. 
 
 particulars by such jurists as Marshall ^o and Story." But the 
 
 during the war against the belligerent 
 claims either of his own country or of a 
 hostile power {1 Duer, p. 521; The Dos 
 Hermanos, 2 Wheaton, 76). So, again, 
 a neutral merchant may at any time 
 withdraw his property and funds from a 
 hostile country, and such ■■, withdrawal 
 may restore him to his neutral domicil. 
 But whether the subject of a belligerent 
 state can, after the outbreak of hostili- 
 ties, withdraw from a hostile state, so 
 as to escape the imputation of trade with 
 the enemy is doubtful. If the with- 
 drawal can be effected at all, either it 
 must be done within a short period after 
 the outbreak of war, or any delay in 
 effecting it must be shown to have arisen 
 from necessity or from compulsion (The 
 Diana, 5 C. Rob. 59; The Ocean, id. 90; 
 The President, id. 277; 1 Duer, p. 519). 
 
 "C. Person's Civil need not coincide 
 with his Cmrnnercial Domicil. — From 
 the distinctions between a civil and a 
 commercial domicil, the conclusion fol- 
 lows that a person may have a civil 
 domicil in one country, and, at the same 
 time, a commercial domicil or residence 
 in another. Thus, suppose that D.'a 
 domicil of origin is English, but that he 
 goes to France and sets up in trade there 
 without any purpose of making France 
 his permanent home, but with the dis- 
 tinct intention of returning to England 
 within ten years. He clearly retains 
 his English domicil of origin ; and the 
 outbreak of a war between France and 
 England does not of itself affect D.'s 
 civil domicil. 
 
 " If D. continues to reside and trade 
 in France after the outbreak of hostili- 
 ties, though without any change of in- 
 tention as to the time of his stay in 
 France, he will acquire a French com- 
 mercial domicil. In other words, he 
 will have a civil domicil in England and 
 a commercial domicil in France. Nor 
 is this fact really inconsistent with Bule 
 3, that no person can, at the same 
 time, have more than one domicil. It 
 
 only illustrates the fact constantly dwelt 
 upon in this work, that residence is dif- 
 ferent from domicil, and that a person 
 while domiciled in one country may, 
 in fact, reside in another." 
 
 But he is not correct in assuming 
 that the intention requisite for the es- 
 tablishment of "commercial domicil" 
 is "intention to continue residing and 
 trading in a given country." Intention 
 to trade is merely accessory, and not at 
 all essential, — at least such is the Amer- 
 ican view, as may be seen in the cases 
 cited in the notes to this section ; and 
 it is so explicitly declared by Story, J., 
 in the passage quoted above, in note 1. 
 See also particularly The Venus, sitpra, 
 where Marshall, C. J., says : " For com- 
 mercial purposes, the merchant is con- 
 sidered as a member of that society in 
 which he has his domicil; and less con- 
 clusive evidence than would seem to be 
 required in general cases, by the law of 
 nations, has been allowed to fix the 
 domicil for commercial purposes. But 
 I cannot admit that the original mean- 
 ing of the term is to be entirely disre- 
 garded, or the true nature of this domi- 
 cil to be overlooked." It is true that 
 this language was used in a dissenting 
 opinion ; but the nature of the anvm/us 
 manendi was not the point upon which 
 the court divided. Washington, J., in 
 the majority opinion, considers the neces- 
 sary animtM to be intention to settle per- 
 manently or " for an indefinite time." 
 
 Twiss, in his treatise on " The Law 
 of Nations in Time of War" {§ 153), 
 after laying down domicil as the test 
 of national character, says : " A nation 
 may have made no provision whatever 
 under its municipal law for distinguish- 
 ing the status of one foreigner from 
 that of another foreigner within its 
 territory ; and such a system of law 
 may not be attended with any inconve- 
 nience in time of peace ; but in time of 
 war it becomes indispensable for every 
 nation to have some criterion to enable 
 
 10 In The Venus, supra. 
 
 » In The Ann Green, 1 Gall. 274. 
 
 35 
 
§27.] 
 
 THE LAW OF DOMICIL. 
 
 [chap. 
 
 n. 
 
 Supreme Court of the United States in its latest decisions ^ 
 seems inclined to put the question of national character upon 
 the broad ground of domicil ; and for the ascertainment of 
 domicil, to apply as far as possible the same principles and 
 tests in cases of this description as in other cases. 
 
 § 27. Id. NaturaUzation.— The Act of Congress regulating 
 naturalization requires as a condition precedent to admission 
 
 it readily to distinguish the character of 
 an alien friend from that of an alien 
 enemy. Nations have accordingly 
 sought for a common rule in such mat- 
 ters, which would be free from ambi- 
 guity, whilst it should commend itself 
 to universal acceptance by its natural 
 justice ; and permanent residence has 
 been found to answer all the require- 
 ments of such a rule. An individual 
 cannot be permanently resident in two 
 countries ; and wherever he is perma- 
 nently resident, there he is contributing 
 by his industry and general wealth to 
 the strength of the country and to its 
 capacity to wage war. There can be, 
 therefore, no injustice in regarding the 
 property of such a person as forming 
 part of the common stock of the enemy 
 nation, upon which a belligerent may 
 make reprisals. Thus Grotius observes: 
 ' By the law of nations all the subjects 
 of the sovereign, from whom an injury 
 has been received, who are such from a 
 permanent cause, are liable to reprisals, 
 whether they be natives or immigrants ; 
 but not such persons as are only passing 
 through his territory and sojourning in 
 it for a short time.' Accordingly, we 
 find, in the ordinary declarations of re- 
 prisals issued by sovereign powers, an 
 express provision that the ships and 
 goods of all persons inhabiting the terri- 
 tory of the adverse power shall be sub- 
 ject to reprisals. The most recent order 
 in council issued by Great Britain, on 
 29 March, 1854, was to the like effect: 
 ' Her Majesty is pleased, by and with 
 the advice of her Privy Council, to 
 order, and it is hereby ordered, that 
 general reprisals be granted against the 
 ships, vessels, and goods of the Em- 
 peror of all the Bussias, and of his sub- 
 36 
 
 jects and others inhabiting within any 
 of his countries, territories, or domin- 
 ions.' " It is true that Twiss notes a 
 difference between "domicil for civil 
 purposes " and " domicil for interna- 
 tional purposes ; " but what he particu- 
 larly points out is, that for the latter 
 purposes a person can have but one 
 domicU, while for the former (as he as- 
 sumes) he can have several. But this 
 assumption is, as we shall hereafter see, 
 (infra, ch. 4), inadmissible. The same 
 learned author, however, says (§ 156) 
 that " courts of prize do not weigh the 
 question of domicil in the same accurate 
 scales which are used by courts which 
 administer the law of nations in time of 
 peace" (Conf. with Marshall, C. J., 
 supra). And herein, as the writer be- 
 lieves, lies the true solution of the 
 whole matter. For upon a review of the 
 various authorities the better opinion 
 appears to be that domicil used as a test 
 of national character is the same as dom- 
 icil when applied to other purposes, but 
 that in its ascertainment different results 
 may be reached in different courts, be- 
 cause of differences in the methods of 
 inquiry ; in other words, that the dif- 
 ference consists not in the thing inquired 
 about, but in the method of ascertain- 
 ing it. And mainly because of these 
 different results and methods of proof 
 arises the danger of indiscriminate reli- 
 ance upon cases of national character in 
 cases involving other subjects. 
 
 12 Mitchell ». United States, 21 Wall. 
 351; Desmare v. United States, 93 U. S. 
 605. There has, however, from the 
 first been a stronger disposition in the 
 American cases to put national character 
 upon the general principles of domicil 
 than is apparent in the English cases. 
 
§ 28.] USES OP DOMICIL. [CHAP. II. 
 
 to citizenship five years' residence in the United States and 
 one year's residence in the State or Territory in which applica- 
 tion is made ; ^ and the residence required by tlie act is domi- 
 cil.^ Conversely, it has been declared by high authority ^ that 
 an American citizen cannot throw off his allegiance without 
 a bona fide change of domicil. In questions of international 
 citizenship, therefore, domicil plays an important part. 
 
 § 28. Domicil in Private International and Municipal Lainr. — 
 In British jurisprudence domicil finds its main application 
 within the field of what is commonly known as Private In- 
 ternational Law or the Conflict of Laws ; that is to say, it is 
 principally used for the purpose of ascertaining which of sev- 
 eral conflicting territorial laws is applicable to the determina- 
 tion of certain legal questions arising between individuals. 
 In American jurisprudence domicil is similarly applied, but it 
 is also very extensively used for the determination of the rights 
 and duties of individuals under the municipal law, and par- 
 ticularly for the ascertainment of the place where such rights 
 may be enjoyed and such duties must be performed. It is 
 apparent that in the first class of cases, namely, those involv- 
 ing Private International Law, questions of national or quasi- 
 national domicil can alone arise ; while in the second class 
 the question may be one of either national, gwasi-national, 
 or municipal domicil ; although in point of fact, in cases of 
 this character, municipal domicil most frequently comes under 
 discussion. 
 
 In continental practice, as we have seen,^ after the failure of 
 the principle of national descent, domicil became, as it had been 
 to a limited degree under the Roman law, the basis of the ap- 
 plication of personal laws, — or, as they were for a long time 
 and to some extent are even now technically known, personal 
 statutes. And this continued to be the almost universally re- 
 ceived doctrine, at least until the adoption of the Code Napoleon, 
 although there were many and grave disputes in its application. 
 
 1 April 14, 1802, § 1, 2 Sts. p. 153; » Matter of Scott, 1 Daly, 534 j Mat- 
 Rev. St. § 2165. As to the requirement ter of Bye, 2 id. 625. 
 by other countries of domicil as a con- * Talbot v. Jansen, 3 Dall. 133 ; The 
 dition precedent to naturalization, see Santissima Trinidad, 7 Wheat. 283, 347, 
 Cockbum on Nationality, passim, per Story, J. i Supra, § 15. 
 
 37 
 
§ 29.] THE LAW OP DOMICIL. [CHAP. II. 
 
 How far that system of legislation wrought a change in this 
 respect is a matter which has caused some dispute, and can- 
 not be considered as definitely settled. But during the past 
 few decades there has been a growing disposition among 
 continental jurists, which has also found expression to some 
 extent in positive legislation, to replace domicil as the basis 
 of personal laws by political nationality .^ But here again 
 exist differences of opinion as to the extent and manner of 
 the application of the new doctrine ; and at the present day 
 continental .views upon the subject of Private International 
 Law may be said to be in a very unsettled ' and unsatisfac- 
 tory state, from which probably the only definite relief will 
 be by some concerted action among the principal civilized 
 nations, by treaty or otherwise. To state even briefly the 
 views propounded by the leading jurists, or applied by courts 
 upon the Continent, would require more space than can be 
 here devoted, and would indeed be beside the immediate 
 purpose of this chapter. It seems best, therefore, to confine 
 the discussion in the domain of Private International Law 
 exclusively, or nearly so, to the doctrine laid down by the 
 British and American authorities. 
 
 § 29. status .1 It may be laid down that the status — or, 
 as it is sometimes called, civil status, in contradistinction to 
 political status — of a person depends largely, although not 
 universally, upon domicil. The older jurists, whose opinions 
 are fully collected by Story ^ and Burge,'' maintained, with few 
 exceptions, the principle of the ubiquity of status conferred 
 by the lex domicilii with little qualification. Lord Westbury, 
 in Udny v. Udny,* thus states the doctrine broadly: "The 
 civil status is governed by one single principle, namely, that 
 
 ° Supra, § 16, and id. note 1. et seq.) ; Bar, Int. Priv. und Strafrecht, 
 
 1 On this general subject, see Story, §§ 42-46 (Gillespie's trans, p. 160 et 
 
 Confl. of L. ch. 4 ; Burge, For. & Col. seq. ) ; and see particularly the learned and 
 
 L. vol. i. ch. 3 et seq. ; PhiUimore, elaborate opinion of Gray, C. J., in Ross 
 
 Int. L. vol. iv. ch. 17; Westlake, Priv. v. Ross, 129 Mass. 243 (given m/ra, §32, 
 
 Int. L. 1st ed. ch. 13; id. 2d ed. ch. 2, note 2). In these places the reader will 
 
 3 ; Foote, Priv. Int. L. ch. 8 ; Wharton, find collected almost all of the important 
 
 Confl. of L. ch. 3; Dicey, Dom. pt. 3, authorities upon the subject of stoiits. 
 
 ch. 2 ; Piggott, For. Judgments, ch. ^ j/^ supra. 
 
 10; Savigny, System, etc. vol. viii. ' VU supra. 
 
 §§ 362-365 (Guthrie's trans, p. 148 * L. R. 1 Soh. App. 441, 457. 
 38 
 
§ 30.] USES OF DOMICIL. [CHAP. II. 
 
 of domicil, which is the criterion established by law for the 
 purpose of determining civil status. For it is on this basis 
 that the personal rights of the party — that is to say, the law 
 which determines his majoritjjr and minority, his marriage, 
 succession, testacy, or intestacy — must depend." Gray, C. J., 
 iu the late Massachusetts case of Ross v. Ross," speaking with 
 special reference to capacity to inherit, says : " It is a general 
 principle that the status, or condition of a person, the relation 
 in which he stands to another person, and by which he is 
 qualified or made capable to take certain rights in that oth- 
 er's property, is fixed by the law of the domicil ; and that 
 this status and capacity are to be recognized and upheld in 
 every other State, so far as they are not inconsistent with its 
 own laws and policy." 
 
 But great difficulty in the discussion of this subject has 
 arisen by reason of the loose and varying use of the term status, 
 and the want of any clear definition of what is meant by it. 
 Savigny ® understood it to mean " capacity to have rights and 
 to act ; " and this undoubtedly was the sense in which it was 
 understood by the older jurists. In Niboyet v. Niboyet,^ 
 Brett, L. J., gives this definition : " The status of an individ- 
 ual, used as a legal term, means the legal position of the in- 
 dividual in or with regard to the rest of a community." 
 But whatever may be the definition of the term, or whatever 
 rules applicable to status in general may be looked upon as 
 having received general acceptance, there are certain promi- 
 nent states or conditions of persons, which have been treated 
 of by writers and considered by the courts, and these it will 
 be well to examine separately, with a view to ascertain how 
 far they are affected by domicil. 
 
 § 30. Legitimacy and Legitimation. — Beginning with the 
 
 ' 129 Mass. 243, 2i6. action to give it effect, is to be distin- 
 
 ' System, etc. § 361 (Guthrie's trans, guished from the capacity or compe- 
 
 p. 139). Bar understands staius in the tency to enter into contracts that confer 
 
 same sense, §44 (Gillespie's trans, p. 172). rights upon others. A capacity to take 
 
 Gray, C. J., in the case above cited, thus and have differs from a capacity to do 
 
 distinguishes the two phases of capacity and contract ; iu short, a capacity of 
 
 which go to make up staMs : "The holding from a capacity to act." Boss 
 
 capacity or qualification to inherit or v. Boss, uU supra. 
 succeed to property, which is an incident ' L. E. 4 P. D. 1, 11. 
 of the stalits or condition, requiring no 
 
 39 
 
§30.] 
 
 THE LAW OP DOMICIL. 
 
 [chap. II. 
 
 advent of the person into the world, legitimacy (from birth) 
 does not, at least immediately, depend upon domicil. A 
 child born anywhere in lawful wedlock will be everywhere 
 else considered legitimate. The lawfulness of the marriage 
 must however be understood, with the qualification that it is 
 such as is generally recognized among Christian nations as 
 lawful, — e. ^., not polygamous or incestuous. Whether the 
 child is born in or out of wedlock is a matter of proof with 
 which domicil is not concerned.^ 
 
 1 The view stated in the ahove para- 
 graph is suhstantially that maintained 
 by Dicey (Doin. rule 34, p. 181), and 
 is believed to be in entire accord with 
 the general doctrines of English and 
 American jm'isprudence. Lawful wed- 
 lock assumes a valid marriage, and this 
 in its turn depends upon (a) the capacity 
 of the parties to enter into the marriage, 
 and (b) the lawful performance of the 
 marriage ceremony. With neither of 
 these requirements according to the 
 American view, a.9 we shall hereafter see, 
 has domicil anything to do. In the pres- 
 ent state of English jurispradeuce domi- 
 cil may become important with respect 
 to the capacity of the parties, and thus 
 may indirectly have a bearing upon the 
 question of legitimacy. But assuming 
 the mamage to be valid, and stOl sub- 
 sisting (at least at the time of concep- 
 tion), a child of such marriage will, in 
 our own jurisprudence, be considered 
 to be born legitimate, no matter where 
 the birth may occur, or where the parents 
 may at the time be domiciled. Here we 
 have to do with legitimacy at initio, and 
 this case must be carefully distinguished 
 from subsequent legitimation , and filia- 
 tion by acknowledgment. Story (Confl. 
 of L. § 105) says upon this subject: " In 
 questions of legitimacy, or illegitimacy, 
 the law of the place of the marriage will 
 generally govern as to the issue subse- 
 quently born. If the marriage is valid 
 by the law of that place, it will generally 
 be held valid in every other country, for 
 the purpose of ascertaining legitimacy 
 andheir.'ihip. If invalid there, it willgen- 
 erally (if not universally) be held invalid 
 
 40 
 
 in every other country.'' This view was 
 carried out in Van Voorhis v. Brintnal, 
 86 N. Y. 18. (See also Patterson v. 
 Gaines, 6 How. 550, and Boss v. Boss, 
 129 Mass. 263, 247, 248.) He reasons 
 from the standpoint of what may now 
 be considered the thoroughly settled 
 American doctrine, and was then con- 
 sidered the English doctrine as to the 
 validity of marriages. But the latter 
 has, as we shall see, undergone some 
 change. Piggott, in his work on Foreign 
 Judgments (p. 275), thus states the 
 present English doctrine of legitimacy 
 ab initio : " The decision as to the legit- 
 imacy or illegitimacy of the children 
 follows immediately on the declaration 
 of the validity or invalidity of the mar- 
 riage. From what has been already said, 
 it seems that it is scarcely accurate to 
 say that legitimacy is universally deter- 
 mined by the law of the domicil ; for we 
 have seen that where the ceremony has 
 not been performed in accordance with 
 the law of the place of the contract, the 
 marriage will be held invalid; and in this 
 one instance the legitimacy of the chil- 
 dren depends upon the lex loci contrac- 
 tus of the parents' marriage, and not 
 upon the law of the domicil." See also 
 Westlake, Priv. Int. L. 2d ed. p. 83. 
 On the other hand, Bar (§ 102, Gillespie's 
 trans, p. 414) takes the following view : 
 "The law of the place in which the 
 father of a child had his domicil at the 
 time of the child's birth must decide all 
 questions as to whether the child was 
 bom in wedlock, and therefore became 
 subject to his father's authority. The 
 place of the marriage particularly may be 
 
§ 30.] USES OF DOMICIL. [CHAP. II. 
 
 But with respect to the legitimation of one who is born 
 illegitimate, whether by subsequent marriage or by an act of 
 sovereign power, domicil is of vast importance. In a case 
 of legitimation per subsequens matrimonium, it is possible to 
 imagine nine different sets of laws competing ; namely, those 
 of the places of conception, birth, and marriage, and those of 
 the several domicils of both father and mother at the periods 
 of the occurrences named. In answering the question, By 
 what law is the case to be determined? the period of con- 
 ception has by common consent of jurists been entirely 
 thrown out of consideration, and so has substantially the 
 place of marriage. In favor of lex domicilii of the mother 
 plausible reasons may be urged, inasmuch as her domicil at 
 the time of the birth of her illegitimate child becomes his 
 domicil of origin,^ and subsequently any change in her domi- 
 cil is followed by a corresponding change in his ; ^ and this 
 view has been maintained by some.* Nevertheless, modern 
 jurists generally have eliminated the lex domicilii of the 
 mother from the competition. There yet remain the lex 
 loci of the birth, and the lex domicilii of the father at the 
 time of the birth and of the marriage. Few contend for 
 the place of birth,^ and practically the discussion among 
 
 set out of account. The same law will of the father at the time of the hirth of 
 
 determine the effect of the special pre- the child. Burge (For. & Col. L. vol. i. 
 
 sumptions with regard to paternity ; p. 89) appears to hold that the stains of 
 
 these are not rules for convincing the legitimacy or illegitimacy is to he judged 
 
 judge, which would be subject to the lex by the law of the domicil of origin of the 
 
 fori, but substantial rights of the child, child; but he also holds in opposition to 
 
 We shall give our reasons for this view in Bar, and in accordance with the view 
 
 discussing the law of process ; at present stated above in the text, — which ia 
 
 we need only point out how dangerous also Dicey's (Dom. p. 181) — that the 
 
 it would be if the child were prevented proofs of legitimacy are to be according 
 
 from founding on the presumptions that to the lex fori. 
 established his legitimacy at the time of ^ Infra, § 228. 
 his birth, or if different judgments as to » Infra, § 244 a. 
 his legitimacy could be given in differ- * E. g., Lord Cringletie in Rose v. 
 
 ent countries." Savigny (System, etc. Eoss (5 Shaw & Dunlop, 618), 4 "Wils. 
 
 § 380; Guthrie's trans, p. 301) is cited, & Sh. Appendix, 37 ; Lord President 
 
 among others, by Bar, in support of the Hope, in Dalhousie v. McDouall. See 
 
 latter writer's first proposition; but that s. c. in House of Lords, 7 CI. & F. 817, 
 
 great jurist does not distinctly assert 820. 
 
 such view, but rather holds that pater- 5 Among others, Schaefner, Int. Pri- 
 
 iial power resulting from birth in wed- vatrecht, § 37 ; Lords Lyndhurst & 
 
 lock is to be judged by the lex domieilii Wynford, in Eose v. Eoss, 4 Wils. & 
 
 41 
 
§30.] 
 
 THE LAW OP DOMICIL. 
 
 [chap. II. 
 
 the modern jurists and in the British courts has been nar- 
 rowed down to the lex domicilii of the father at the time of 
 birth and at the time of marriage. Upon the Continent the 
 current of opinion is strongly in favor of the latter,^ while 
 in Great Britain the current has been generally the other 
 way, although there have not been wanting judicial expres- 
 sions in favor of his domicile at the date of the marriage. 
 Thus in Aikman v. Aikman,* the whole point of inquiry, both 
 
 lie's trans, p. 302); Bar, § 102 (Gilles- 
 pie's trans, p. 415). 
 
 ' See authorities cited infra. 
 8 3 Macq. H. L. Cas. 854; s. c. (in 
 the Court of Session) 21 D. (Sch. Sess. 
 Cas. 2d ser. 1859) 757. In the court 
 below, Lord Cowan, delivering the opin- 
 ion of the court, said: "This question 
 of status depends upon the domicil of 
 Captain George Robertson Aikman at 
 the date of his marriage with Sarah 
 Cumby, on the 13th of November, 1820. 
 . . . Assuming the domicil of the father 
 to have been in Scotland at the date of 
 his marriage, the defenders are thereby 
 legitimated and the action must fail ; 
 but on the supposition of England hav- 
 ing been the place of the father's domi- 
 cil, the pursuer is entitled -to have the 
 decree he asks. Was England or Scot- 
 land, then, the place of Captain Robert- 
 son Aikman's domicil in November, 
 1820 ? " And in the House of Lords, Lord 
 Wensleydale said : " This case . . . de- 
 pends upon one question only, Whether 
 the appellant has proved to your lord- 
 ships' satisfaction that his late father, 
 Captain Robertson Aikman, was on the 
 13th November, 1820, when he was 
 married at Glasgow, domiciled in Eng- 
 land ! If he has established that fact, 
 then the marriage could not render his 
 brothers who were born before it legiti- 
 mate ; if he has failed to do so, it did, 
 and the eldest was consequently entitled 
 to the Scotch estate ; " and again, " But 
 the question to be decided is. Had that 
 domicil commenced before the 13th 
 November, 1820 ? " And Lords Camp- 
 bell and Granworth used simHar Ian- 
 
 Shaw, 289 ; Lord President Hope, in 
 Munro v. Munro (his view is so stated 
 in the case on appeal, 7 CI. & F. 842, 
 845, 885) ; and a few others might be 
 cited. The view of Story on this sub- 
 ject is difficult to extract. He says 
 (Confl. of L. § 105a): "As to issue 
 bom before the marriage, if, by the law 
 of the country where they are born, they 
 would be legitimated by the subsequent 
 marriage of their parents, they will by 
 such subsequent marriage (perhaps in 
 any country, but at all events in the 
 same country) become legitimate, so that 
 this character of legitimacy will be 
 recognized in every other country. If 
 illegitimate there, the same character 
 will belong to them in every other 
 country." But in all the cases of con- 
 flict upon this subject which he sup- 
 poses, he assumes the place of birth to 
 be the same as the place of the domicil 
 of the parents at the time of the birth, 
 and the question which he proposes is, 
 " Ought the law of the place of the birth, 
 or that of the place of the marriage, or 
 that of the actual domicil of the parents, 
 or that of the actual domicil of the child, 
 to govern ? " (§ 93 g'. ) In another place 
 (§ 87 a) he declares in favor of the dom- 
 icil of birth of the child ; which is, 
 strictly speaking, the domicil of the 
 mother at the time of the birth of the 
 child (supra, note 2). Upon the whole, 
 therefore, all that can be affirmed with 
 respect to his opinion is that he con- 
 sidered that the time of birth, and not 
 of marriage, should be looked to. And 
 this also may be the true explanation of 
 most of the apparent expressions in 
 favor of the place of birth. 
 
 » Savigny, System, etc. § 380 (Guth- 
 
 42 
 
 guage. 
 
§ 30.] USES OF DOMICIL. [CHAP. 11. 
 
 in the Scotch Court of Session and in the House of Lords, 
 was the domicil of the father at the time of the marriage. 
 This was also the case in Munro v. Munro,'' where Lord 
 Brougham said : " With the exception of the learned Lord 
 President all the judges of the court below held that the 
 subsequent marriage of the parents would legitimate the 
 issue before marriage, provided the parties were domiciled 
 at the time of the marriage in a country the law of which 
 recognizes legitimation per subsequens matrimonium." And 
 his lordship apparently adopted this view. It is to be noted, 
 however, that in these cases the domicil of the father was 
 held to be Scotch both at the time of the birth and of the 
 marriage, so that the question between the two domicils did 
 not actually arise. 
 
 But, on the other hand, in lie Wright's Trusts,^" where the 
 question was distinctly before the court, the father, who was at 
 the time of the birth of the child domiciled in England, having 
 before marriage changed his domicil to Trance, Wood, V. C, 
 held that the capacity of the child for legitimation was to be 
 determined by the law of the former domicil, and conse- 
 quently held the child not to have been legitimated; and 
 subsequently, in Udny v. Udny,^^ the same judge (then Lord 
 Chancellor Hatherley) declared that he saw no reason to re- 
 tract that opinion. The same position was taken by Stuart, 
 V. C, in Goodman v. Goodman,^^ and by the majority of the 
 Court of Appeal in the very late case of He Goodman's 
 Trusts.12 Dicey ,1* while laying this down as the general rule, 
 and holding that the child of an English father would 
 not acquire capacity for legitimation by the subsequent 
 change of his father's domicil, does not consider the con- 
 verse settled ; namely, that the child of a Scotch father 
 would not be rendered incapable of legitimation by the 
 father becoming domiciled in England. Phillimore^^ and 
 Foote^^ appear to consider the rule settled in favor of the 
 domicil of the father at the time of the birth of the child. 
 
 9 7 a. & F. 842. 18 L. R. 17 Ch. D. 266. 
 
 i» 2 K. & J. 595. " Dora, rule 35, pp. 181, 192. 
 
 " L. E. 1 Soh. App. 441, 447. " int. L. vol. iv. no. 541. 
 
 12 3 Giff. 643. 16 Prir. Int. L. pp. 41, 47. 
 
 43 
 
§ 31.] THE LAW OP DOMICIL. [CHAP, II. 
 
 Westlake,^' however, holds the result of the cases to be that 
 legitimation per subsequens matrimonium will be recognized 
 in England only when it is permitted by the lex domicilii 
 of the father, both at the time of the birth and at the time 
 of the marriage. Certainly this is the only theory upon 
 which the conflicting judicial expressions can be reconciled, 
 but that such result will finally be reached by judicial de- 
 cision appears doubtful ; that it should be reached, more than 
 doubtful. 
 
 With respect to legitimation by act of sovereign power (in 
 the Roman law, per reseriptum prineipis ; in ours, usually by 
 act of legislation) somewhat different principles may possibly 
 be applicable. A child legitimated by authority of the State 
 in which he and his father are domiciled, should undoubtedly 
 be held legitimate everywhere. 
 
 Domicil is doubtless the basis of authority to confer such 
 legitimation, unless we adopt the recent continental theory 
 of political nationality. It is, however, possible that the dom- 
 icil of the parent would not be so closely adhered to as in 
 cases of legitimation per subsequens matrimonium, but that 
 some effect, at least, may be given to the domicil of the child, 
 if it be different from that of the parent.^^ 
 
 § 31. Legsd Effects of Legitimation. — With respect to the 
 legal effects of legitimation per subsequens matrimonium, it 
 has been settled by Birtwhistle v. Vardill ^ in the House of 
 Lords that a person so legitimated cannot inherit land in 
 
 " Priv. Int. L. 2d ed. §§ 50, 51. In his after the marriage the legislature of 
 
 first edition he favors the "matrimonial Pennsylvania, where the parties were 
 
 domicil," no. 406, p. 388. In this still domiciled, passed an act legitimat- 
 
 country, in Miller v. Miller, 91 N. Y. ing children in cases where marriage had 
 
 315, 320, the New York Court of Ap- already taken place. In Ross v. Eoss, 
 
 peals expressed an opinion in favor of 129 Mass. 243, Gray, C. J., considers it 
 
 the law of the domicil (Pennsylvania) still a grave question, which domicil of 
 
 of the father at the time of the marriage ; the father shall govern. See infra, § 32, 
 
 but it also considered the child legiti- note 2. 
 
 mated according to the law of the father's w See Schaefher, Int. Privatrecht, 
 
 domicil (Wiirtemberg) at the time of § 40 ; Bar, § 102, n. 6 (Gillespie's 
 
 thehirth. In this case, however, there trans, p. 415); Wharton, Confl. of L. 
 
 was the additional peculiarity that the § 249. And this is consistent with 
 
 law of the domicil at the time of the what is hereafter said concerning adop- 
 
 marriage did not then admit of legitima- tion, infra, § 32, note 1. 
 
 tion per subsequens matrimonium ; but i 7 CI. & F. 895. 
 
 44 
 
§ 32.] USES OF DOMICIL. [CHAP. II. 
 
 England. This was held, however, not because the status of 
 legitimation so conferred by foreign law would not be recog- 
 nized in England, but because by virtue of the positive law of 
 that country, and particularly of the Statute of Merton, land 
 can descend only to those born in lawful matrimony. This 
 decision has been followed in this country ,2 and the converse 
 has also been held in England ; ^ namely, that no person can 
 inherit land there situate from a person so legitimated, except 
 his own lawful issue. The question has been raised in Eng- 
 land whether persons legitimated in this manner satisfy the 
 definition of the word " children " used in the Statute of 
 Distributions relating to personal property. The negative 
 was held by Jessel, M. R, in He Goodman's Trusts,* but his 
 decision was reversed on appeal.^ It is, indeed, noticeable that 
 there has been a disposition on the part of some lawyers in 
 that country to restrain as far as possible the legal effects of 
 legitimation under foreign law, rather, however, on technical 
 grounds of construction than otherwise ; nevertheless, the de- 
 cided cases fully recognize the existence of such status when 
 it properly arises under the lex domicilii. In this country, 
 where legitimation per subsequens matrimonium is so largely 
 allowed, an opposite tendency is to be expected. 
 
 The legal effects of legitimation by act of sovereign power 
 are similar to those of legitimation ^er subsequens matrimonium. 
 Thus, in a Louisiana case,^ where the Statute of Merton was 
 never in force, it was held that a child legitimated by an act 
 of the Territorial legislature of Arkansas, where he and his 
 putative father were domiciled, might inherit land situate in 
 Louisiana. 
 
 § 32. Adoption. — The validity of an act of adoption, and 
 the legal status of parent and child resulting therefrom, de- 
 pend upon the lex domicilii of the parties to it at the time it 
 occurs.^ This was fully demonstrated in the late Massachu- 
 
 2 Smith V. Derr's Admrs., 34 Pa. St. « L. E. 14 Ch. D. 619. 
 
 126 ; Lingen v. Lingen, also approved ' 17 id. 266. See also Goodman v. 
 
 Barnum v. Bamum, 42 Md. 251, 307. Goodman, 3 Giff. 643 ; Boyea v. Bedale, 
 
 Contra, Miller v. Miller, 91 N. Y. 315 ; 1 H. & M. 798. 
 
 Scott V. Key, 11 La. Ann. 232, and see ' Scott v. Key, supra. 
 
 Eoss V. Eo33, 129 Mass. 243. l Here the lex domicUU of the child 
 
 ' In re Don's Estate, i Drew. 194. is to he looked to, as well as that of the 
 
 45 
 
§ 32.] THE LAW OP DOMICIL. [CHAP. 11. 
 
 setts case of Ross v. Ross,^ in which Gray, C. J., reviewed at 
 
 adopting person. Wharton, Confl. of L. 
 § 251; Brocher, Cours de Droit Int. 
 Priv. t. 1, § 101. As tearing some- 
 what upon the converse of this, see 
 Foster v. Waterman, 124 Mass. 692. 
 
 2 129 Mass. 243. The opinion so 
 clearly and ably discusses the relation of 
 domioil to statits in many of its phases, 
 that it is deemed wise to introduce it 
 here m extenso. The learned Chief .Tus- 
 tice said : — 
 
 " This case presents for adjudication 
 the question whether a, child adopted, 
 with the sanction of a judicial decree 
 and with the consent of his father, by 
 another person, in a State where the 
 parties at the time hare their domicil, 
 under statutes substantially similar to 
 our own, and which, like ours, give a 
 child so adopted the same rights of suc- 
 cession and inheiitance as legitimate off- 
 spring in the estate of the person adopt- 
 ing him, is entitled, after the adopting 
 parent and the adopted child have re- 
 moved their domicil into this Common- 
 wealth, to inherit the real estate of such 
 parent in this Commonwealth upon his 
 dying here intestate. 
 
 "The question how far a child 
 adopted according to law in the State of 
 the domicil can inherit lands in another 
 State, was mentioned by Lord Brougham 
 in Doe v. Vardill, 7 CI. &Fin. 895, 898, 
 and by Chief Justice Lowrie, in Smith 
 V. Derr, 84 Penn. St. 126, 128; but, so 
 far as we are informed, has never been 
 adjudged. It must therefore be deter- 
 mined upon a consideration of general 
 principles of jurisprudence, and of the 
 judicial application of those principles 
 in analogous cases, 
 
 " As a general rule, when no rights 
 of creditors intervene, the succession and 
 disposition of personal property are regu- 
 lated by the law of the owner's domicil. 
 It is often said, as in Cutter v. Daven- 
 port, 1 Pick. 81, 86, cited by the tenant, 
 to be a settled principle that ' the title 
 to and the disposition of real estate must 
 be exclusively regulated by the law of 
 the place in which it is situated.' But 
 
 46 
 
 so general a statement, without explana- 
 tion, is liable to mislead. The question 
 in that case was of the validity of an 
 assignment of a mortgage of real estate ; 
 and there is no doubt that by our law 
 the validity, as well as the form, of any 
 instrument of transfer of real estate, 
 whether a deed or a wUl, is to be deter- 
 mined by the lex rei sitcB. Goddard v. 
 Sawyer, 9 Allen, 78 ; Sedgwick v. Laflin, 
 10 Allen, 430, 433 ; United States n. 
 Crosby, 7 Cranch, 115 ; Clark v. Gra- 
 ham, 6 Wheat. 577 ; Kerr v. Moon, 9 
 Wheat. 565 ; McCormick v. SuUivant, 
 10 Wheat. 192. 
 
 "It is a general principle that the 
 staUis or condition of a person, the re- 
 lation in which he stands to another 
 person, and by which he is qualified or 
 made capable to take certain rights in 
 that other's property, is fixed by the 
 law of the domicil ; and that this status 
 and capacity are to be recognized and up- 
 held in every other State, so far as they 
 are not inconsistent with its own laws 
 and policy. Subject to this limitation, 
 upon the death of any man, the statiis 
 of those who claim succession or inherit- 
 ance in his estate is to be ascertained 
 by the law under which that stattis 
 was acquired ; his personal property is 
 indeed to be distributed according to 
 the law of his domicil at the time of his 
 death, and his real estate descends accord- 
 ing to the law of the place in which it is 
 situated; but, in either case, it is accord- 
 ing to those provisions of that law which 
 regulate the succession or the inheri- 
 tance of persons having such a status. 
 
 " The capacity or qualification to in- 
 herit or succeed to property, which is 
 an incident of the statvs or condition, 
 requiring no action to give it effect, is 
 to be distinguished from the capacity 
 or competency to enter into contracts 
 that confer rights upon others. A ca- 
 pacity to take and have diflfers from a 
 capacity to do and contract ; in short, 
 a capacity of holding from a capacity to 
 act. Generally speaking, the validity 
 of a personal contract, even as regards 
 
§ 32.] USES OP DOMICIL. [CHAP. II, 
 
 length the leading cases of personal status. It was there 
 
 the capacity of the party to make it, as 
 in the case of a married woman or an 
 infant, is to be determined liy the law 
 of the State in which it is made. Milli- 
 ken V. Pratt, 125 Mass. 374, and author- 
 ities cited ; Polydore v. Prince, 1 Ware, 
 402, 408-413 ; Bell v. Packard, 69 Me. 
 105 ; Bond v. Cummings, 70 Me. 125 ; 
 Wright V. Remington, 12 Vroom, 48. 
 Sir William Scott, in Dalrymple v. Dal- 
 rymple, 2 Hagg. Consist. 54, 61. Lord 
 Brougham, in Warrender v. Warrender, 
 2 CI. & Fin. 488, 544 ; s. C. 9 Bligh 
 N. E. 89, 120 ; 2 Sh. & Macl. 154, 214; 
 Simonin v. Mallac, 2 Sw. & Tr. 67, 77 ; 
 Sottomayer v. De Barros, 5 P. D. 94, 
 100. And the validity of any transfer 
 of real estate by act of the owner, whether 
 inter vivos or by will, is to be determined, 
 even as regards the capacity of the 
 grantor or testator, by the law of the 
 State in which the land is situated. 
 Story, Confl. §§ 431, 474. But the 
 stattis or condition of any person, with 
 the inherent capacity of succession or 
 inheritance, is to be asceltained by the 
 law of the domicil which creates the 
 statm, at least when the status is one 
 which may exist under the laws of the 
 State in which it is called in question, 
 and when there is nothing in those laws 
 to prohibit giving full effect to the 
 status and capacity acquired in the State 
 of the domicil. 
 
 " A person, for instance, who has the 
 status of child of another person in the 
 country of his domicil, has the same 
 statiis here, and as such takes such share 
 of the father's personal property as the 
 law of the domicil gives him, and such 
 share of his real estate here as a child 
 takes by the laws of this Commonwealth, 
 unless excluded by some positive rule 
 of our law. Inheritance is governed by 
 the fee rei sitce ; but legitimacy is to be 
 ascertained by the lex domicilii. If a 
 man domiciled in England has two le- 
 gitimate sons there, and dies intestate, 
 owning land in this Commonwealth, 
 both sons have the status of legitimate 
 children ilfcre ; but by virtue of our 
 
 statute of descents, the land descends to 
 them equally, and not to the oldest son 
 alone, as by the law of England. 
 
 " If a marriage (in the proper sense 
 of the term, not including Mormon or 
 other polygamous marriages ; Hyde v. 
 Hyde, L. K. 1 P. & D. 130) is cele- 
 brated in one State, according to the 
 form prescribed by its laws, between 
 persons domiciled there, and competent 
 to intermaiTy, it is universally admitted 
 that the woman must be recognized 
 everywhere as the lawful wife of the 
 man, and entitled as such, upon his 
 death, to such dower in his lands as the 
 law of the State in which they are situ- 
 ated allows to a widow ; although it is 
 this law, and not the law of the domicil, 
 which fixes the proportion that she 
 shall take. Ilderton v. Ilderton, 2 H. 
 Bl. 145 ; Doe v. Vardill, 2 CI. & Fin. 
 571, 575, 576 ; s. o. 9 Bligh N. K. 32, 
 47, 48; Potter v. Titcomb, 22 Me. 300 ; 
 Lamar v. Scott, 3 Strob. 562 ; Jones v. 
 Gerock, 6 Jones Eq. 190 ; Stoiy, Confl. 
 §§ 159, 454. 
 
 " Our law goes beyond this in recog- 
 nizing the validity of foreign marriages, 
 and holds that the relation of husband 
 and wife being a status based upon the 
 contract of the parties, and recognized 
 by all Christian nations, the validity of 
 that contract, if not polygamous, nor 
 incestuous, according to the general 
 opinion of Christendom, is governed, 
 even as regards the competency of the 
 contracting parties, by the law of the 
 place of the contract ; that this status, 
 once legally established, should be recog- 
 nized eve-rywhere as fully as if created 
 by the law of the domicil ; and there- 
 fore that any such marriage, valid by 
 the law of the place where it is con- 
 tracted, is, even if contracted between 
 persons domiciled in this Common- 
 wealth and incompetent to marry here 
 under our laws (except so far as the 
 legislature has clearly enacted that such 
 marriages out of the Commonwealth 
 shall be deemed void here), valid here 
 to all intents and effects, civil or crimi- 
 
 47 
 
§ 32.] THE LAW OP DOMICIL. [CHAP. 11. 
 
 decided also that a child adopted in accordance with the law 
 
 nal, including the settlement of the 
 wife and children, her right of dower, 
 and their legitimacy and capacity to in- 
 herit the father's real estate. Parsons, 
 C. J., in Greenwood v. Curtis, 6 Mass. 
 358, 377-379 ; Medway v. Needham, 16 
 Mass. 157 ; West Cambridge v. Lexing- 
 ton, 1 Pick. 506 ; Putnam v. Putnam, 
 8 Pick. 433 ; Commonwealth v. Lane, 
 113 Mass. 458 ; Bullock v. Bullock, 122 
 Mass. 3 ; Milliken v. Pratt, 125 Mass. 
 380, 381. 
 
 "As to foreign divorces, it is well 
 settled in this Commonwealth that a 
 decree of divorce rendered in another 
 State, in which the legal domicil of the 
 parties is at the time, and according to 
 its laws, even for a cause which is not a 
 ground of divorce by our laws, and 
 although their marriage took place while 
 they were domiciled in this Common- 
 wealth, is valid here, and conclusive in 
 a suit concerning the husband's interest 
 or the wife's dower in lands in this 
 Commonwealth. Barber v. Boot, 10 
 Mass. 260; Clark D. 'Clark, 8 Cush. 385 ; 
 Hood V. Hood, 11 Allen, 196 ; Hood v. 
 Hood, 110 Mass. 463; Burlen v. Shan- 
 non, 115 Mass. 438 ; Sewall v. Sewall, 
 122 Mass. 156. The provision of the 
 existing statutes, affirming the Validity 
 of foreign divorces, made no change in 
 the law ; but, in the words of the com- 
 missioners, upon whose advice it was 
 first enacted, ' is founded on the rule 
 established by the comity of all civilized 
 nations, and is proposed merely that no 
 doubt should arise on a question so in- 
 teresting and important as this may 
 sometimes be.' Rev. Sts. c. 76, § 40, 
 and note of commissioners ; Gen. Sts. 
 c. 107, § 55. The leading case of 
 Barber v. Boot, above cited, arose and 
 was determined before the enactment of 
 this provision. And in England, since 
 the establishment of a court vested with 
 power to grant divorces from the bond 
 of matrimony, the tendency of the 
 judges is to recognize the validity of a 
 foreign divorce between English per- 
 sons married in England, but domiciled 
 
 48 
 
 in good faith at the time of the divorce 
 in the foreign State, at least for a cause 
 which would be a cause of divorce in 
 England. See Dicey on Domicil, 234- 
 237, 353-355; Harvey v. Farnie, 5 
 P. D. 153. 
 
 "Another class of cases requires 
 more particular examination. By the 
 rule of the common law, which is the 
 law of England to this day, and formerly 
 prevailed throughout the United States, 
 a child not bom in lawful matrimony is 
 not deemed the chUd of his father, al- 
 though, the parents subsequently inter- 
 marry, but is indelibly a bastard. By 
 the rule of the civil law, on the other 
 hand, which has been adopted in Scot- 
 land, as well as in France, Germany, 
 and other parts of Europe, and more re- 
 cently in many States of the Union, such 
 a chUd may become legitimate upon the 
 subsequent marriage of his parents. 
 
 " The leading case in Great Britain 
 on this subject is Shedden v. Patrick, 
 briefly reported in Morison's Diet. Dec. 
 Foreign Appx. I. no. 6, and more fully 
 in 5 Paton, 194, which was decided by 
 the House of Lords, on appeal from the 
 Scotch Court of Session, in 1808, and in 
 which a Scotchman, owning land in 
 Scotland, became domiciled in New 
 York, and there cohabited with an 
 American woman, had a son by her, and 
 . afterwards married her, and died there ; 
 and the son was held not entitled to in- 
 herit his land in Scotland. Two ques- 
 tions were argued : 1st. Whether the 
 plaintiff, being by the law of the country 
 where he was bom, and where his par- 
 ents were domiciled at the time of his 
 birth and of their subsequent marriage, 
 a bastard and not made legitimate by 
 such marriage, could inherit as a legiti- 
 mate son in Scotland, the law of which 
 allows legitimation by subsequent matri- 
 mony. 2d. Whether, being a bastard, 
 and therefore nuUiiis filius at the time 
 of his birth in America, he was an alien 
 and therefore incapable of inheriting 
 land in Great Britain ; the act of Par- 
 liament of 4 Geo. n. c. 21, making 
 
S 32.] USES OF DOMICIL. [CHAP. 11. 
 
 of their common domicil could take by inheritance from his 
 
 only those children, horn out of the 
 ligeance of the British crown, natural- 
 horn subjects, whose fathers were such 
 suhjeets ' at the time of the hirth of such 
 children respectively." The Court of 
 Session decided the case upon the first 
 ground. In the House of Lords, after 
 full argument of both questions by 
 Fletcher and Brougham for the appel- 
 lant and by Eomilly and Nolan for 
 the respondent, Lord Chancellor Eldon, 
 speaking for himself and Lord Redea- 
 dale, said that, ' as it was not usiial to 
 state any reasons for affirming the judg- 
 ment of the court below, he should 
 merely observe that the decision in this 
 case would not be a precedent for any 
 other which was not precisely the same 
 
 > in all its circumstances,' and thereupon 
 
 ' moved that the judgment of the Court 
 of Session should be afSrmed, which was 
 
 ' accordingly ordered. On a suit brought 
 forty years afterwards by the same plain- 
 tiff against the same defendant to set 
 aside that judgment for fraud in procur- 
 ing it, the House of Lords in 1854, with- 
 out discussing the first point, except so 
 far as it bore upon the question whether 
 there had been any fraudulent suppres- 
 sion of facts relating to the father's 
 
 ' domicil, held that the plaintiff was an 
 alien at the time of his birth, and could 
 
 \ not be afterward naturalized except by 
 
 j act of Parliament. Shedden v. Patrick, 
 1 Macq. 535. 
 
 " "But the remark of Lord Eldon, 
 above quoted, in moving judgment in 
 the original case, and the statements 
 made in subsequent cases by him, by 
 Lord Eedesdale, who concurred in that 
 judgment, and by Lord Brougham, who 
 was of counsel in that case, clearly show 
 that the judgment in the House of 
 Lords, as well as in the Court of Session, 
 went upon the ground that the child 
 was illegitimate because the law of the 
 foreign country, in which the father 
 was domiciled at the time of the birth 
 of the child and of the subsequent mar- 
 riage of the parents, did not allow legiti- 
 mation by subsequent matrimony. Lord 
 
 Eldon's judgment in the Strathniore 
 Peerage Case, 4 Wils. & Sh. Appx. 89-91, 
 95 ; 8. c. 6 Paton, 645, 656, 657, 662 ; 
 Loixl Bedesdale's judgment in s. c, 4 
 Wils. & Sh. Appx. 93, 94, and 6 Paton, 
 660, 661 ; expounded by Lord Lynd- 
 luirst in the presence and with the con- 
 currence of Lord Eldon, in Eose v. Ross, 
 4 Wils. & Sh. 289, 295-297, 299 ; s. c. 
 nom. Munro v. Saunders, 6 Bligh N. R. 
 468, 472-475, 478. Lord Brougham, 
 in Doe v. Vardill, 2 CI. & Fin. 571, 
 587, 592, 595, 600 ; s. c. 9 Bligh 
 N. E, 32, 75, 80, 83 ; in Munro v. 
 Munro, 7 CI. & Fin. 842, 885 ; s. c. 1 
 Robinson H. L. 492, 615 ; and in 
 Shedden v. Patrick, 1 Macq. 622. 
 
 "That decision is wholly inconsis- 
 tent with the theory that upon general 
 principles, independently of any positive 
 rule of law, the question whether a per- 
 son claiming an inheritance in real es- 
 tate is the lawful child of the last owner 
 is to be determined by the lex rei sites ; 
 for if that law had been applicable to 
 that question, the plaintiff must have 
 been held to be the legitimate heir ; and 
 it was only by trying that question by 
 the law of the domicil of his father that 
 he was held to be illegitimate. The de- 
 cision receives additional interest and 
 weight from the fact that the case for 
 the appellant (which is printed in 1 
 Macq. 539-552) was drawn up by Mr. 
 Brougham, then a member of the Scotch 
 bar, and contained a very able state- 
 ment of reasons why the lex rei sitce 
 should govern. 
 
 " In later cases in the House of Lords, 
 like questions have been determined by 
 the application of the same test of the 
 law of the domicil. In the case of the 
 Strathmore Peerage, above cited, which 
 was what is commonly called a Scotch 
 peerage, having been such a peerage be- 
 fore the union of the two kingdoms, 
 the last peer was domiciled in England, 
 had an illegitimate son there by an Eng- 
 lishwoman, and married her in England ; 
 and it was held that by force of the law 
 of England the son did not inherit the 
 
 i 49 
 
§ 32.] THE LAW OP DOMICIL. [CHAP. II. 
 
 adopted father land situate in Massachusetts. The contrary- 
 
 peerage. So in Rose v. Eoss, above 
 cited, where a Scotchman by birth be- 
 came domiciled in England, and had a 
 son there by an Englishwoman, and 
 afterwards went to Scotland with the 
 mother and son, and married her there, 
 retaining his domicil in England, and 
 then returned with them to England and 
 died there, it was held that the son 
 could not inherit the lands of the father 
 in Scotland, because the domicil of the 
 father, at the time of the birth of the 
 child and of the subsequent marriage, 
 was in England. On the other hand, 
 where a Scotchman, domiciled in Scot- 
 land, has an illegitimate son born in 
 England, and afterwards manies the 
 mother, either in Englaud, whether in 
 the Scotch or in the English form, or 
 in Scotland, the son inherits the father's 
 land in Scotland because the father'.s 
 domicil being throughout in Scotland, 
 the place of the birth or marriage is 
 immaterial. Dalhousie v. McDouall, 
 7 CI. & Fin. 817 ; s. c. 1 Robinson H. 
 L. 475 ; Munro v. Munro, 7 CI. & Fin. 
 842 ; s. c. 1 Robinson H. L. 492 ; Aik- 
 man v. Aikman, 3 Macq. 854 ; Udny 
 V. Udny, L. R. 1 H. L. Sc. 441. 
 
 "In the well-known case of Doe dem. 
 Birtwhistle v. Vardill, it was indeed 
 held by the Court of King's Bench in 
 the first instance, and by the House of 
 Lords on writ of error, after two argu- 
 ments, at each of which the judges at- 
 tended and delivered an opinion, that a 
 person born in Scotland, and there le- 
 gitimate by reason of the subsequent 
 marriage of his parents in Scotland, 
 they having had their domicil there at 
 the time of the birth and of the mar- 
 riage, could not inherit land in England. 
 
 5 B. & C. 438 ; 8 D. & R. 185 ; 2 01. 
 
 6 Fin. 571 ; 9 Bligh N. R. 32 ; 7 CI. 
 & Fin. 895 ; 6 Bing. N. C. 385 | 1 Scott 
 N. E. 828 ; West H. L. 500. 
 
 "One curious circumstance connected 
 with that case is, that under the English 
 usage, which allows counsel in a cause, 
 if raised to the bench during its progress, 
 to sit as judges in it, Chief Justice Tin- 
 
 50 
 
 dal, who had argued the case for the 
 plaintiff in the King's Bench, gave the 
 opinion of the judges in the House of 
 Lords, in accordance with which judg- 
 ment was finally rendered for the de- 
 fendant ; and Lord Brougham, who had 
 taken part as counsel for the defendant 
 in the first argument in the House of 
 Lords, was most reluctant, for reasons 
 which he stated with characteristic ful- 
 ness and power, to concur in that judg- 
 ment. 5 B. & C. 440 ; 2 CI. & Fin. 
 582-598 ; 7 CI. & Fin. 924, 940-957. 
 
 " But that case, as clearly appears by 
 the opinions of Chief Justice Abbott and 
 his associates in the King's Bench, as 
 well as by that of the judges, delivered 
 by Chief Justice Tindal, and those of 
 Lord Brougham and Lord Cottenham, 
 after the rehearing in the House of 
 Lords, was decided upon the ground 
 that, admitting that the plaintiff must 
 be deemed the legitimate son of his 
 father, yet, by what is commonly called 
 the Statute of Merton, 20 Hen. III. c. 9, 
 the Parliament of England, at a time 
 when the English Crown had possessions 
 on the Continent, in which legitimation 
 by subsequent matrimony prevailed, 
 had, although urged by the bishops to 
 adopt the rule of the civil and canon 
 law, by which children born before the 
 maniage of their parents are equally 
 legitimate as to the succession of inheri- 
 tance with those bom after marriage, 
 positively refused to change the law of 
 England as theretofore used and ap- 
 proved. The ratio decidendi is most 
 clearly brought out by Mr. Justice Little- 
 dale and by Chief Justice Tindal. 
 
 " Mr. Justice Littledale said : ' One 
 general rule applicable to every course 
 of descent is, that the heir must be born 
 in lawful matrimony. That was settled 
 by the Statute of Merton, and we can- 
 not allow the comity of nations to pre- 
 vail against it. The very nile that a 
 personal status accompanies a man every- 
 where is admitted to have this qualifica- 
 tion, that it does not militate against 
 the law of the country where the conse- 
 
§ 32.] USES OF DOMICIL. [CHAP. II. 
 
 was held in an Illinois case;^ but in this, as in other in- 
 
 quenoes of that status are sought to be 
 enforced. Here it would militate against 
 our statute law to give effect to that 
 status of legitimacy acquired by the 
 lessor of the plaintiff in Scotland. He 
 cannot, therefore, be received as legiti- 
 mate heir to land in England.' S B. & 
 C. 455. 
 
 " Upon the first argument in the House 
 of Lords, Chief Baron Alexander, adopt- 
 ing the sentiment and the language of 
 Sir William Scott in Dalrymple v. Dal- 
 rymple, 2 Hagg. Consist. 58, 59, 'varied 
 only so far as to apply to a question of 
 legitimacy what was said of a question 
 respecting the validity of a marriage,' 
 said, in the name of all the judges who 
 attended at the argument : ' The cause 
 being entertained in an English court 
 must be adjudicated according to the 
 principles of English law applicable to 
 such a case ; but the only principle ap- 
 plicable to such a case by the law of 
 England is, that the status or condition 
 of the claimant must be tried by refer- 
 ence to the law of the country where 
 the status originated ; having furnished 
 this principle, the law of England with- 
 draws altogether, and leaves the ques- 
 tion of status in the case put to the law 
 of Scotland.' The learned Chief Baron 
 added : ' The comity between nations 
 is conclusive to give to the claimant the 
 character of the eldest legitimate son of 
 his father, and to give him all the rights 
 which are necessarily consequent upon 
 that character.' 2 CI. & Fin. 573-575. 
 The grounds upon which, notwithstand- 
 ing this, he undertook, without alluding 
 to the Statute of Merton and the prac- 
 tice under it, to maintain that, by the 
 rules of inheritance and descent which 
 the law of England had impressed upon 
 all land in England, the plaintiff could 
 not recover, were so unsatisfactory to 
 the lords that Lord Brougham, at that 
 stage of the case, declared that he en- 
 tertained a very strong opinion that the 
 case was wi'ongly decided in the court 
 
 below, and Lord Lyndhurst and Lord 
 Denman concurred in his motion that 
 the case should be reargued. 2 CI. & 
 Fin. 598-600. 
 
 " In delivering the opinion of the 
 judges after the second argument. Chief 
 Justice Tindal said : ' The grounds and 
 foundation upon which our opinion rests 
 are briefly these, — That we hold it to 
 be a rule or maxim of the law of Eng- 
 land with respect to the descent of land 
 in England from father to son, that the 
 son must be born after actual marriage 
 between his father and mother ; that 
 this is a rule juris positivi, as are all the 
 laws which regulate succession to real 
 property, this particular rule having 
 been framed for the direct purpose of 
 excluding, in the descent of land in 
 England, the application of the rule of 
 the civil and canon law, by which the 
 subsequent marriage between the father 
 and mother was held to make the son 
 bom before marriage legitimate ; and 
 that this rule of descent, being a rule of 
 positive law annexed to the land itself, 
 cannot be allowed to be broken in upon 
 or disturbed by the law of the country 
 where the claimant was born, and which 
 may be allowed to govern his personal 
 status as to legitimacy, upon the sup- 
 posed ground of the comity of nations.' 
 7 CI. & Fin. 925. 
 
 " The Chief Justice thefi proceeded to 
 make an elaborate statement of the pro- 
 visions of the Statute of Merton, and 
 of the circumstances under which it was 
 passed, particularly dwelling upon the 
 facts that at the time of its passage, 
 Normandy, Aqnitaine, and Anjou were 
 under the allegiance of the King of Eng- 
 land, and those horn in those dominions 
 were natural-born subjects and could in- 
 herit land in England ; and that many 
 of the peers who attended appeared to 
 have been of foreign lineage if not of 
 foreign birth, and were, at all events, 
 well acquainted with the rule of law 
 which was then so strongly contested. 
 
 8 Keegan v. Geraghty, 101 111. 26. 
 
 51 
 
§32.] 
 
 THE LAW OF DOMICIL. 
 
 [chap. II. 
 
 stances, questions relating to the title to land are to be 
 governed by the lex loci rei sitce. 
 
 'yet, notwithstanding the rule of the 
 civil and canon law prevailed in Nor- 
 mandy, Aqiiitaine, and Anjou, by which 
 the subsequent man-iage makes the an- 
 tenatus legitimate for all purposes and 
 to all intents ; and notwithstanding 
 the precise question then under discus- 
 sion was whether this rule should gov- 
 ern the descent of land locally situate 
 in England, or whether the old law and 
 custom of England should still continue 
 as to such land, under which the ante- 
 Tiatus was incapable to take land by de- 
 scent, — there isnot the slightest allusion 
 to any exception in the rule itself as to 
 those born in the foreign dominions of 
 the Crown, but the language of the 
 rule is, in its terms, general and uni- 
 versal as to the succession to land in 
 England.' And he fortified his position 
 that no such exception was intended, 
 by referring to the forms of writs before 
 and after the passage of the statute, and 
 to Glanville, Bracton, and other early 
 authorities. 7 CI. & Fin. 926-933. 
 
 " It was upon the 'very great new 
 light ' thus thrown upon the question, 
 and the ' very important additions ' thus 
 made to the former arguments, that 
 Lord Brougham, though not wholly 
 convinced, waived his objections to 
 judgment for the defendant. 7 CI. & 
 Fin. 939, 9+3-946, 956. And Lord 
 Cottenham, the only other law lord 
 present, in moving that judgment, said : 
 'I am extremely satisfied with the 
 ground upon which the judges put it, 
 because they put the question on a 
 ground which avoids the difficulty that 
 seems to surround the task of interfering 
 with those general principles peculiar to 
 the law of England, principles that at 
 first sight seem to be somewhat at vari- 
 ance with the decisions to which the 
 courts have come.' 7 01. & Fin. 957. 
 And see Lord Brougham, Lord Cran- 
 worth, and Lord Wensleydale, in Fenton 
 «. Livingstone, 3 Maoq. 497, 532, 544, 
 550. 
 
 " In the case of Don's Estate, 4 
 
 52 
 
 Drewry, 194, Vice Chancellor Kindersley 
 declared that the general principle was 
 that ' the legitimacy or illegitimacy of 
 any individual is to be determined by 
 the law of that country which is the 
 country of his origin ; if he is legitimate 
 in his own country, then all other 
 countries, at least all Christian coun- 
 tries, recognize him as legitimate every- 
 where ; ' and the ground of the decision 
 in Doe v. VardUl was that, admitting 
 the personal status of legitimacy, the 
 law of England attached to land certain 
 rules of inheritance which could not 
 be departed from. And he therefore 
 held that, assuming that a son born in 
 Scotland before the marriage of his 
 parents domiciled there, and there legiti- 
 mate in consequence of their subsequent 
 marriage, was legitimate all over the 
 world, at any rate in England, yet, as 
 he could not inherit land in England 
 from his father or from any other per- 
 son, so no other person could succeed to 
 him by inheritance except his own issue. 
 
 " So, in Shaw v. Gould, L. R. 3 H. L. 
 55, 70, Lord Cranworth said of Doe v. 
 Vardill : ' The opinions of the judges in 
 that case, and of the noble lords who 
 spoke in the House, left untouched the 
 question of legitimacy, except so far as 
 it was connected with succession to real 
 estate. I think they inclined to the 
 opinion that for purposes other than 
 succession to real estate, for purposes 
 unaffected by the Statute of Merton, 
 the law of the domicil would decide the 
 question of status. No such decision 
 was come to, for no question arose ex- 
 cept in relation to heirship to real estate. 
 But the opinions given in the case seem 
 to me to show a strong bias towards the 
 doctrine that the question of stat%is 
 must, for all purposes unaffected by the 
 feudal law, as adopted and acted on in 
 this country, be decided by. the law of 
 the domicil.' 
 
 "In Skottowe v. Young, L. E. 11 
 Eq. 474, the proceeds of lands in Eng- 
 land were devised by a British subject 
 
§33.] 
 
 USES OF DOMICIL, 
 
 [chap. II. 
 
 § 33. Paternal Power. — Continental jurists contend strongly 
 for the regulation of paternal power according to the lex domi- 
 
 domiciled in France, in trust to sell and 
 to pay the proceeds to his daughters 
 horn of a Frenchwoman before marriage, 
 hut afterwards legitimated according to 
 the law of France ; and it was held by 
 Vice-Chancellor Stuart, in accordance 
 with a previous dictum of Lord Chan- 
 cellor Cranworth, in Wallace v. Attor- 
 ney-General, L. R. 1 Ch. 1, 8, that the 
 daughters were not ' strangers in blood,' 
 within the meaning of the legacy duty 
 act. The Vice-Chancellor observed that 
 in Doc V. Vardill the claimant was ad- 
 mitted to have in England the status of 
 the eldest legitimate son of his father, 
 and failed in his suit only because he 
 could not prove that he was heir accord- 
 ing to the law of England, in which the 
 land was ; that this will was that of a 
 domiciled Frenchman, and his status 
 and that of his children must be their 
 status according to the law of France, 
 which, according to Doe v. Vardill, 
 constituted their English status ; and 
 that ' the status of these ladies being that 
 of daughters legitimated according to 
 the law of France by a declaration of 
 the father, it is impossible to hold that 
 they are for any purpose strangers in 
 blood, on the mere ground that if they 
 had been English, and their father 
 domiciled in England, they would have 
 been illegitimate.' 
 
 " It may require grave consideration, 
 when the question shall arise, whether 
 the legitimacy of a child depending 
 upon marriage of its parents or other 
 act of acknowledgment after its birth, 
 should not be determined by the law of 
 the domicil at the time of the act which 
 effects the legitimation, rather than by 
 the law of the domicil at the time of the 
 birth, or even of the marriage, when 
 some other acknowledgment is neces- 
 saiy. See Sir Samuel Komilly's argu- 
 ment, in Shedden v. Patrick, 5 Paton, 
 205 ; printed more at length in 1 Macq. 
 656-558 ! Lord Brougham, in Munro v. 
 Munro, 7 CI. & Fin. 882 ; 8. c. 1 Robin- 
 son H. L. 612 ; Lord St. Leonards, in 
 
 Shedden v. Patrick, 1 Macq. 641 ; 
 Stevenson v. Sullivant, 5 Wheat. 207, 
 259 ; 2 TouUier, Droit Civil (5th ed.), 
 217 ; Savigny's Private International 
 Law, § 380 ; (Guthrie's ed.), 250 and 
 note 260. 
 
 ' ' These authorities do not appear to 
 have been considered in those English 
 cases, in which, under a bequest in an 
 English will to 'the children' of an 
 Englishman who afterwards became 
 domiciled in a foreign country, and 
 there married the mother of his illegiti- 
 mate children born there, whereby they 
 became legitimate by the law of that 
 country, Vice-Chancellor Wood (after- 
 wards Lord Hatherley) and Vice-Chan- 
 cellor Stuart were of opinion that those 
 children bom before the change of dom- 
 icil could not take, and differed upon 
 the question whether those born after 
 the change could take, Vice-Chancellor 
 Stuart holding that they could, and 
 Vice-Chancellor Wood holding that 
 they could not. Wright's Trust, 2 
 K. & J. 595 ; s. c. 25 L. J. (n. s.) 
 Cli. 621 ; 2 Jur._(N. s.) 465; Good- 
 man V. Goodman, 3 Giff. 643; Boyes 
 V. Bedale, 1 Hem. & Mil. 798 ; Lord 
 Hatherley in Udny v. Udny, L. R. 1 
 H. L. So. 441, 447. See also Kinders- 
 ley, V. C, in Wilson's Trusts, L. R. 1 
 Eq. 247, 264-266 ; Lord Chelmsford, in 
 s. c. nom. Shaw v. Gould, L. R. 3 H. L. 
 55, 80. But those opinions proceeded 
 upon the construction of wiUs of persona 
 domiciled in England ; and Vice-Chan- 
 cellor Wood appears to have admitted 
 that if the father had never been domi- 
 ciled in England the rule would have 
 been different. Wright's Trust, 25 L. J. 
 (N, s. ) Ch. 632 ; 8. c. 2 Jur. (n. s.) 472 ; 
 citing Ashford v. Tnstin, before Parker, 
 V. C, reported only in Lovell's Monthly 
 Digest, 1852, p. 389; Udny v. Udny, 
 L. R. 1 H. L. Sc. 448. i 
 
 "The dictum of Vice-Chancellor 
 Wood in Boyes v. Bedale, 1 Hem. & 
 Mil. 805, and the decision of Sir George 
 Jessel, M. R., in the case of Goodman's 
 
 53 
 
§33.] 
 
 THE LAW OP DOMICIL. 
 
 [chap. II. 
 
 cilii} But so far as this extends to the power of the parent 
 over the person of the child, it is not admitted in our juris- 
 
 Trusts, 14 Ch. D. 619, that the word 
 'children' in the English statute of 
 distributions means only children ac- 
 cording to the law of England, and that 
 therefore children born in a foreign 
 country, and legitimated by the law of 
 that countiy upon the subsequent mar- 
 riage of their parents there, could not 
 take by representation under that statute 
 as children of their father, although he 
 was domiciled in that country at the 
 time of their birth and of the subsequent 
 marriage, can hardly, as it seems to us, 
 be reconciled with the general current 
 of judicial opinion in England, as shown 
 by the cases already referred to. 
 
 "The most accomplished commen- 
 tators on the subject, English and 
 American, are agreed that the decision 
 in Doe v. Vardill, which has had so 
 great an influence with English judges, 
 does not rest upon general principles of 
 jurisprudence, but upon historical, po- 
 litical, and constitutional reasons pecu- 
 liar to England. Westlake's Private 
 International Law (ed. 1858), §§ GO- 
 OS ; (ed. 1880) intro.. 9, §§ 53, 168 ; 4 
 Phillimore's International Law (2d ed. ), 
 § 538 note ; Dicey on Domicil, 182, 188, 
 191, pref. iv. ; 2 Kent Com. 117, note 
 a, 209, note a ; 4 Kent Com. 413, note 
 d ; Story, Confl. §§ 87, 87 a and note, 
 93 I, 93 m ; Redfield, in Story, Confl. 
 §SSw and note ; Whart. Confl. § 242. 
 Upon questions of comity of States, con- 
 siderations derived from the feudal law, 
 from an act of Parliament of the time 
 of Henry III., and from the constitution 
 and policy of the English government, 
 have no weight in Massachusetts at the 
 present day. 
 
 " Almost fifty years ago, the legisla- 
 ture of this Commonwealth enacted that 
 children bom before the marriage of 
 their parents and acknowledged by their 
 father afterwards, and legitimate chil- 
 
 dren of the same parents, should inherit 
 from each other as if all had been bom 
 in lawful wedlock ; but did not make 
 such illegitimate children capable of in- 
 heriting from their father. St. 1832, 
 c. 147. Whether this was accidental 
 or designed, the commissioners on the 
 revision of the statutes in 1835 reported 
 to the legislature that they had no 
 means to conjecture, not knowing the 
 reasons on which the statute itself was 
 founded, ' the whole of it being an inno- 
 vation upon the law as immemorially 
 practised and transmitted to us by our 
 ancestors ; ' and therefore pi-oposed a 
 section making no change in this re- 
 spect, but only expressing what they 
 supposed to have been the intention of 
 the framers of that statute ; ' leaving it 
 to the wisdom of the legislature, if they 
 should think fit to continue this law in 
 force, to modify it in such manner as 
 shall be thought proper.' Beport of 
 Commissioners on Rev. Sts. c. 61, § 4 
 and note. 
 
 "The legislature solved the doubt 
 of the learned commissioners by making 
 the statute more comprehensive, and 
 enacting it in this form : ' When, after 
 the birth of an illegitimate child, his 
 parents shall intemiarry, and his father 
 shall, after the marriage, acknowledge 
 him as his child, such child shall be 
 considered as legitimate to all intents 
 and purposes, except that he shall not be 
 allowed to claim, as representing either 
 of his parents, any part of the estate of 
 any of their kindred, either lineal or 
 collateral.' Rev. Sts. c. 61, § 4. 
 
 " In Loring v. Thorndike, 5 Allen, 
 257, a testator domiciled in this Com- 
 monwealth, by a will admitted to pro- 
 bate before the Revised Statutes were 
 passed, bequeathed a sum in trust to 
 pay the income to his son for life, and 
 the principal at Ids death ' to his lawful 
 
 1 Savigny, System, etc. § 
 (Guthrie's trans, p. 301); Bar, § 
 (Gillespie's trans, p. 414 et seq.). 
 
 54 
 
 880 also Philliraore, Int. L. vol. iv. nos. 523, 
 102 524, and Wharton, Confl, of L. § 353, 
 See and the authorities cited by both. 
 
§33.] 
 
 USES OF DOMICIL. 
 
 [chap. II. 
 
 prudence.2 Our courts constantly interfere to regulate the 
 custody of children, and will allow a foreign parent no greater 
 
 heirs.' After the Revised Statutes took 
 effect, the son, whose domicil also was 
 and continued to be in this Common- 
 wealth, had two illegitimate children in 
 Germany by a German woman, and 
 afterwards married her there in a form 
 authorized by the law of the place, and 
 there acknowledged them as his chil- 
 dren. This court held that by the Rev. 
 Sts. e. 61, § i, such children must be 
 deemed legitimate for aU purposes, ex- 
 cept of taking by inheritance as repre- 
 senting oue of the parents any part of 
 the estate of the kindred, lineal or col- 
 lateral, of such parent ; and that the 
 children took directly under the will of 
 their grandfather, and not as the repre- 
 sentatives of their father, and were 
 therefore not within the exception of 
 the statute, but were entitled to the 
 benefit of the bequest. 
 
 "Still greater changes in the rules 
 of the law of England as to the de- 
 scent of real estate have been made by 
 subsequent legislation in this Common- 
 wealth. Aliens, whether residing here 
 or abroad, may take, hold, convey, and 
 transmit real estate. St. 1852, c. 29 ; 
 Gen. Sts. c. 90, § 38 ; Lumb v. Jen- 
 kins, 100 Mass. 527. And if the par- 
 ents of an illegitimate child marry, and 
 the father acknowledges him as his 
 child, the child is to be deemed legiti- 
 mate for all purposes whatsoever, 
 whether of inheritance or settlement 
 or otherwise. St. 1853, c. 253 ; Gen. 
 Sts. c. 91, § 4 ; Monson v. Palmer, 8 
 Allen, 551. The statutes of adoption 
 will be referred to hereafter. 
 
 "In Smith v. Kelly, 23 Miss. 167, it 
 was held that the status or condition of 
 a person as to legitimacy must be deter- 
 mined by reference to the law of the 
 country where such status or condition 
 had its origin, and that the status so 
 ascertained adhered to him everywhere ; 
 
 and therefore that where, at the time 
 of the birth of an illegitimate child and 
 of the subsequent marriage of its parents, 
 they were domiciled in South Carolina, 
 in which such marriage did not make 
 the child legitimate, and afterwards 
 removed with the child to Mississippi, 
 by the law of which State subsequent 
 marriage of the parents and acknowledg- 
 ment of the child by the father would 
 legitimate it, and the child was always 
 recognized by the father as his child, 
 yet the child, having had the status of 
 illegitimacy in South Carolina, retained 
 that status in Mississippi, and could not 
 inherit or succeed to either real or per- 
 sonal property in Mississippi. That 
 decision is a strong application of the 
 law of the domicil of origin, and per- 
 haps did not give sufficient effect to the 
 father's recognition of the child in Mis- 
 sissippi after they had established their 
 domicil in that State. 
 
 " In Scott V. Key, 11 La. Ann. 232, 
 while a father and his illegitimate son, 
 whose mother he never married, were 
 domiciled in the Territory of Arkansas, 
 the legislature of that Territory passed 
 a special statute enacting that the sou 
 should be made his father's legal heir 
 and representative in as complete a man- 
 ner as though he had been such from his 
 birth, and should be as capable of in- 
 heriting his father's estate in a full and 
 complete manner, as if his father had 
 been married to his mother at the time 
 of his birth, and should be known and 
 called by his father's name; and the 
 father and son afterwards removed to 
 Louisiana. The ma,jority of the court 
 held that the heritable quality of legiti- 
 macy, which the son had received from 
 the legislature of the State of his resi- 
 dence, accompanied him when he 
 changed his domicil, and that he was 
 entitled to inherit his father's im- 
 
 2 See particularly the remarks of Confl. of L. § 253 ; Phillimore, Int. L. 
 Lord Cottenham, in Johnstone v. Beat- vol. iv. nos. 524, 625. 
 tie, 10 01. & F. 42, 114. Also Wharton, 
 
 55 
 
§33.] 
 
 THE LAW OF DOMICIL. 
 
 [chap. II. 
 
 privilege in this respect than one domiciled within the terri- 
 tory of the court exercising jurisdiction. 
 
 movable property in louisiana, to the 
 exclusion of the father's brothers and 
 sisters. Chief Justice Merrick dis- 
 sented, but only upon the ground that 
 to allow such an act to have an extra- 
 territorial effect would be to allow an- 
 other State to provide a new class of 
 heirs for immovables and successions in 
 Louisiana ; and that in order that per- 
 sonal statutes should be enforced in an- 
 other country, there must be something 
 in common between the jui-isprudence 
 of the two countries ; and, speaking of 
 the conflicting rules of the civil law and 
 the common law in regard to legitima- 
 tion by subsequent matrimony, said : 
 ' The doctrine of the civil law ought to 
 be enforced, doubtless, in those cases 
 where our own statute recognizes a 
 mode of legitimation by acknowledg- 
 ment by notarial act and subsequent 
 maniage, although the form in which 
 it has been done in another State differs 
 from our own.' 11 La. Ann. 239. And 
 see 4 PhUlimore, § 542; Savigny (Guth- 
 rie's ed.) 258, 260, 264 and note. 
 
 " In Bamumi). Bamura, 42 Md. 251, 
 on the other hand, it was said, in the 
 opinion of the majority of the court, 
 that a special statute of the legislature 
 of Arkansas, enacting that one person 
 be constituted the heir of another, both 
 of whom had a domicil there, making no 
 reference to any maiTiage, and not even 
 depending on the one being the child of 
 the other, could have no extra-territorial 
 operation whatever. See pp. 305, 307, 
 325. But the point decided was, that 
 the former was not an 'heir' of the lat- 
 ter, within the meaning of the will of the 
 latter's father, who, nine years before the 
 passage of the Arkansas statute, died 
 domiciled in Maryland, the law of which 
 does not appear to have permitted the 
 creation of an heir in that manner. 
 
 "The cases on this topic in other 
 States, so far as they have come to our 
 notice, afford little assistance. The 
 decision in Smith v. Derr, 34 Penn. 
 St. 126, that a child horn out of wed- 
 
 56 
 
 lock, and legitimated by the law of 
 another State where the father and 
 child were domiciled, could not inherit 
 land in Pennsylvania in 1855, was, as 
 the court said, covered by the principle 
 decided in Doe v. Vardill ; for the Stat- 
 ute of Merton was then in force in 
 Pennsylvania, although since repealed 
 there. See Report of the Judges, 3 Binn. 
 595, 600; Purd. Dig. (10th ed.) 1004. 
 The decision in Harvey v. Ball, 32 Ind. 
 98, allowing a bastard child of parents 
 who at the time of its birth and of 
 their subsequent intermarriage, and 
 until their death, had their domicil in 
 Pennsylvania, to inherit land in Indi- 
 ana under a statute of Indiana enacting 
 that ' if any man shall maiTy a woman 
 who has, previous to the marriage, 
 borne an illegitimate child, and after 
 marriage shall acknowledge such child 
 as his own, such child shall be deemed 
 legitimate to all intents and purposes,' 
 was put exclusively upon the meaning 
 attributed by the court to that statute, 
 without regard to general principles or 
 cases decided elsewhere ; and upon any 
 other ground would be inconsistent with 
 the decision in the leading case of Shed- 
 den V. Patrick, before cited. In Lingen 
 V. Lingen, 45 Ala. 410, in which it was 
 held that a child, bom in France of 
 parents who never intermarried, and 
 there acknowledged by his father ac- 
 cording to the forms of the French law, 
 and so made legitimate by that law, 
 could not take a share in the father's 
 estate in Alabama, the father's domicil 
 was always in Alabama, and the child 
 had not been legitimated in any manner 
 allowed by the laws of that State. 
 
 " The legal adoption by one person 
 of the offspring of another, giving him 
 the status of a child and heir of the 
 parent by adoption, was unknown to the 
 law of England or of Scotland, but was 
 recognized by the Roman law, and exists 
 in many countries on the continent of 
 Europe which derive their jurisprudence 
 from that law. Co. Lit. 7 b, 237 6 ; 
 
§33.] 
 
 USES OP DOMICIL. 
 
 [chap, ir. 
 
 The lex domicilii is allowed in this country and in England 
 no influence upon the relation of the parent to the immovable 
 
 4 Phillimore, § 631; irackenzie's Ro- 
 man Law, 120-124. Whart. Confl. 
 g 251. It was long age introduced, 
 from the law of France or of Spain, 
 into Louisiana and Texas, and more 
 recently, at various times, and by dif- 
 ferent statutes, throughout New Eng- 
 land, and in New York, New Jersey, 
 Pennsylvania, and a large proportion of 
 the other States of the Union. Fase- 
 lier V. Masse, 4 La. 423 ; Vidal v. Com- 
 magfere, 13 La. Ann. 516 ; Teal v. Se- 
 vier, 26 Tex. 616 ; Miss. St. 1846 ; 
 Hutch. Miss. Code, 501 ; Alabama 
 Code of 1852, § 2011 ; N, Y. St. 1873, 
 c. 830 ; N. J. Rev. Sts. of 1877, § 1346; 
 Penn. St. 1855, c. 456 ; Purd. Dig. 61 ; 
 1 Southern Law Eev. (n. s.) 70, 79 
 and note, citing statutes of other States. 
 One of the first, if not the very first, of 
 the States whose jurisprudence is based 
 exclusively on the common law, to in- 
 troduce it, was Massachusetts. 
 
 " By the St. of 1851, c. 324, upon 
 the petition of any inhabitant of this 
 Commonwealth, and of his wife, if he 
 was a married man, for leave to adopt a 
 child not his own by birth, with the 
 consent in writing of its parents, or the 
 survivor of them, or, if neither should 
 be living, of the child's legal guardian, 
 next of kin, or next friend, and the con- 
 sent of the child also if of the age of 
 fourteen years or upwards, the judge of 
 probate of the county in which the peti- 
 tioner resided, upon being satisfied that 
 the petitioner, or, in case of husband 
 and wife, the petitioners, were of suffi. 
 cient ability to bring up the child and 
 furnish it with suitable nurture and 
 education, and that it was fit and proper 
 that such adoption should take effect, 
 was authorized to decree that the child 
 should be deemed and taken to be, to 
 all legal intents and purposes, the child 
 of the petitioner or petitioners ; and the 
 child so adopted was thereafter to be 
 d.eemed, for the purposes of inheritance 
 and succession by such child, custody of 
 his person, duty of obedience to such 
 
 parents or parent by adoption, and all 
 other legal consequences and incidents 
 of the natural relation of parents and 
 children, the same as if he had been 
 born of such parents or parent by adop- 
 tion in lawful wedlock, saving only that 
 he should not be capable of taking prop- 
 erty expressly limited to the heirs of the 
 body of the petitioner or petitioners. 
 St. 1851, c. 324, §§ 1-6. And by the 
 St. of 1854, c. 24, the petitioner was 
 authorized to have the name of the 
 child changed at the same time. These 
 provisions were substantially re-enacted 
 in 1860, and again in 1871, with a fur- 
 ther exception that the adopted child 
 should not be capable of taking prop- 
 erty from the lineal or collateral kindred 
 of such parents by the right of repre- 
 sentation. Gen. Sts. t. 110, §§ 1-8 ; 
 13 St. 1871, c. 310. 
 
 "The statute of Pennsylvania of 
 1855, which is made part of the case 
 stated, and under which the demandant 
 was adopted by the intestate in 1871, 
 while both were domiciled in that State, 
 corresponds to these statutes of this 
 Commonwealth in most respects. Like 
 them, it permits any inhabitant of the 
 State to petition for leave to adopt a 
 chUd ; it requires the petition to be 
 presented to. a court in the county where 
 the petitioner resides ; it requires the 
 consent of the parents or surviving par- 
 ent of the child ; it authorizes the court, 
 upon being satisfied that it is fit and 
 proper that such adoption should take 
 effect, to decree that the child shall 
 assume the name, and have all the 
 rights and duties of a child and heir, 
 of- the adopting parent ; and it makes 
 the record of that decree evidence of 
 that fact. 
 
 " The statute of Pennsylvania differs 
 from our own only in not requiring the 
 consent of the petitioner's wife, and of 
 the child if more than fourteen years of 
 age ;. in omitting the words ' as if horn 
 in lawful wedlock ' in defining the effect 
 of the adoption ; in also omitting any 
 
 67 
 
§33.] 
 
 THE LAW OF DOMICIL. 
 
 [chap. II. 
 
 property of his child. This is governed exclusiTely by the lex 
 loci rei »itce? But ihe rights of the parent with respect to the 
 
 exception to the adopted child's capacity 
 of inheriting from the adopting parent ; 
 and in expressly providing that, if the 
 adopting parent has other children, the 
 adopted child shall share the inheritance 
 with them in case of intestacy, and he 
 and they shall inherit through each 
 other as if all had been lawful children 
 of the same parent. 
 
 " In Commonwealth v. ITancrede, 32 
 Penn. St. 389, it was held that a child 
 adopted under the act of 1855, and to 
 whom the adopting father had devised 
 and bequeathed all his estate, was not 
 exempt from the collateral inheritance 
 tax under an earlier statute of that 
 State ; and Chief Justice Lowrie said : 
 ' It is property devised or descending to 
 children or lineal descendants that is 
 exempt from the tax. If the heirs or 
 devisees are so in fact, they are exempt ; 
 all others are subject to the tax. Giving 
 an adopted son a right to inherit does 
 not make him a son in fact. And he is 
 so regarded in law, only to give the 
 right to inherit, and not to change 
 the collateral inheritance tax law. As 
 against that law, he has no higher merit 
 than collateral blood relations of the 
 deceased, and is not at all to be regarded 
 as a son in fact.' The scope and mean- 
 ing of that decision appear more clearly 
 by referring to the terms of the earlier 
 statute, which imposed such a tax on all 
 estates passing from any person dying 
 seised thereof, either testate or intes- 
 tate, to any person other than the 
 ' father, mother, husband, wife, chil- 
 dren, and lineal descendants bom in 
 lawful wedlock.' Purd. Dig. 214, 215. 
 The whole effect of the decision there- 
 fore was, that a child adopted under the 
 act of 1855 was not exempt from the tax, 
 because he was not a ' child born in law- 
 ful wedlock,' or, in the words of the 
 Chief Justice, not ' a son in fact.' 
 
 "In Schafer v. Eneu, 64 Penn. St. 
 
 304, a testator who died before the 
 passage of the adoption act of 1855, de- 
 vised property in trust for the sole and 
 separate use of his daughter for life, 
 and on her death to be conveyed to her 
 children and the heirs of her children 
 forever, and made a residuary devise to 
 his own children, by name, in fee ; the 
 daughter afterwards adopted three chil- 
 dren under the act of 1855, and died 
 leaving no other children ; and it was 
 held that the estate devised went to the 
 children of the testator, and not to the 
 adopted children of the daughter. Mr. 
 Justice Strong, in delivering judgment, 
 referred to Commonwealth v. Nancrede, 
 above cited, and said : ' Adopted chil- 
 dren are not children of the person by 
 whom they have been adopted, and the 
 act of Assembly does not attempt the 
 impossibility of making them such. . . . 
 The right to inherit from the adopting 
 parent is made complete, but the Iden- 
 tity of the child is not changed. One 
 adopted has the rights of a child with- 
 out being a child.' And he added that 
 the testator's own children had a vested 
 interest under his will, when the act of 
 1855 was passed, which it was not in 
 the power of the legislature to take 
 away. 
 
 " We are not required, and are hardly 
 authorized, for the purposes of the pres- 
 ent case, to consider whether the first 
 of these decisions can be reconciled in 
 principle with that of Vice-Chancellor 
 Stuart in Skottowe v. Young, L. E. 11 
 Eq. 474, above referred to, or the second 
 with those of this court in Sewall v. 
 Eoberts, 115 Mass. 262, and Loiing v. 
 Thorndike, 5 Allen, 257. We assume 
 them to establish conclusively that by 
 the law of Pennsylvania a child adopted 
 by a man under the act of 1855, not 
 being a child born to him in wedlock, 
 is not his child, within the terms of the 
 collateral inheritance tax act of that 
 
 68 
 
 » story, Confl. of L. § 463. 
 
§33.] 
 
 USES OP DOMICIL. 
 
 [chap. II. 
 
 movable property of his child are probably to be considered in 
 our law as subject to the lex domioilii. This is the view in- 
 
 dicated by a decision* of 
 
 Shadwell, V. 
 
 C, and it has been, 
 
 at least tentatively, adopted by the text-writers who have con- 
 sidered the matter.^ The question, however, still remains open. 
 
 State, nor within the meaning of the 
 will of a third person, domiciled in that 
 State, who died before adoption had 
 any legal existence there. 
 
 "But the opinion in each of those 
 cases clearly recognizes, what is indeed 
 expressly enacted in the statute, that, 
 as between the adopted child and the 
 adopting father, the child has all the 
 rights and duties of a child, and the ca- 
 pacity to inherit as such. According 
 to one of the most learned and thought- 
 ful writers on jurisprudence of our time. 
 It is the rights, duties, and capacities 
 arising from the event which creates a 
 particular status, that constitute the 
 status itself and afford the best defini- 
 tion of it. 2 Austin on Jurisprudence 
 (3ded.), 706, 709-712, 974. By the 
 law of Pennsylvania, therefore, as en- 
 acted by its legislature and expounded 
 by its highest judicial tribunal, the de- 
 mandant, as between him and his adopt- 
 ing father, has in all respects the legal 
 status of a child. 
 
 " The law of the domicil of the par- 
 tics is generally the rule which governs 
 the creation of the status of a child by 
 adoption. Foster v. Waterman, 124 
 Mass. 592 ; 4 Phillimore, § 531 ; Whart. 
 Confl. § 251 . The status of the demand- 
 ant, as adopted child of the intestate, 
 in the State in which both were domi- 
 ciled at the time of the adoption, was 
 acquired in substantially the same man- 
 ner, and was precisely the same so far 
 as concerned his relation to, and his ca- 
 pacity to inherit the estate of, the adopt- 
 ing father, as that which he might have 
 acquired in this Commonwealth, had the 
 parties been then domiciled here. In 
 this respect there is no conflict between 
 the laws of the two Commonwealths. 
 The difference between them in regard to 
 the consent of the wife of the adopting 
 father, and to the inheritance of estates 
 
 limited to heirs of the body, or inherit- 
 ance from the kindred, or through the 
 children, of such father, are not ma- 
 terial to this case, in which the only 
 question is whether the adopted child 
 or a brother of the adopting father has 
 the better title to land in the absolute 
 ownership of such father at the time of 
 his death. "Whatever effect the want 
 of formal consent, on the part of the 
 wife of the intestate, to the adoption 
 of the demandant, might have, if 
 she were claiming any interest in her 
 husband's estate, it can have no bear- 
 ing upon this controversy between the 
 adopted child and a collateral heir. 
 
 " We are not aware of any case, in 
 England or America, in which a change 
 of status in the country of the domicil, 
 with the formalities prescribed by its 
 laws, has not been allowed full effect, 
 as to the capacity thereby created of 
 succeeding to and inheriting property, 
 real as well as personal, in any other 
 country the laws of which allow a like 
 change of status in a like manner with 
 a like effect under like circumstances. 
 
 "We are therefore of opinion that 
 the legal status of child of the intes- 
 tate, once acquired by the demandant 
 under a statute and by a judicial decree 
 of the State of Pennsylvania, while the 
 parties were domiciled there, continued 
 after their removal into this Common- 
 wealth, and that by virtue thereof the 
 demandant is entitled to maintain this 
 action." 
 
 * Gambler v. Gambler, 7 Sim. 263. 
 
 * Phillimore, Int. L. vol. iv. no. 529 ; 
 Dicey, Dom. rule 27, pp. 170-172 ; 
 Westlake, Priv. Int. L. 1st ed. no. 405, 
 p. 387 ; Story, Confi. of L. § 463 ; and 
 Wharton, Confl. of L. § 255 ; and with 
 some qualifications. Id. § 256. 
 
 69 
 
§ 34.] THE LAW OF DOMICIL. [CHAP. II. 
 
 § 34. Guardianship. — There is no doubt that primarily the 
 appointment of the guardian of a minor belongs to the court, 
 or other proper authority, at the doinicil of the minor. This 
 is especially true with respect to the jurisdiction of the vari- 
 ous courts or other appointing authorities within the same 
 State. Continental writers with great unanimity contend for 
 the recognition everywhere of the rights and powers of the 
 domiciliary guardian with respect to both the person and the 
 movable property of the ward,^ differing, however, in their 
 views with respect to his immovable property.^ But this 
 doctrine has not obtained in England or in this country. In 
 Johnstone v. Beattie ^ the House of Lords settled it that a 
 foreign guardian has virtute officii no authority over an infant 
 in England. The Court of Chancery, therefore, may, in its 
 discretion, appoint a different guardian, and may interfere to 
 prevent the removal of the ward by the domiciliary guardian.* 
 Of the American doctrine Story ^ says : " In the States acting 
 under the jurisprudence of the common law, the rights and 
 powers of guardians are considered as strictly local, and not 
 as entitling them to exercise any authority over the person or 
 personal property of their wards in other States." Neverthe- 
 less, the domiciliary appointment is of considerable importance, 
 and will be recognized by the courts of other jurisdictions in 
 this country and in England, in their discretion, to the extent 
 of handing over the ward to the domiciliary guardian for 
 removal, or of requiring the local guardian to carry out with 
 respect to the ward the directions of the domiciliary court or 
 guardian.® But this is a matter purely of discretion, which 
 
 1 Savigny, System, etc. g 380 (Guth- Priv. Int. Jm-. p. 35 et seq. ; Dicey, 
 
 lie's trans, p. 302 et seq.); Bar, § 106 Dom. pp. 172-176; Story, Confl. of 
 
 (Gillespie's trans, p. iS7 et seq.); Story, L. § 499 and note as, and §504 a; 
 
 Confl. of L. §§ 495-498, 500-502 a; Wharton, Confl. of L. § 261 et seq. 
 
 Wharton, Confl. of L. § 267. The older * Besides authorities cited in the last 
 
 authorities are more in conflict than note, see particularly Dawson v. Jay, 3 
 
 those of the present day. De G. M. & G. 764. 
 
 2 See authorities cited in the last ' Confl. of L. § 499. See also Hoyt 
 
 note. V. Sprague, 103 U. S. 613, 631; Wood- 
 
 8 10 CI. & F. 42. See, however, worth v. Spring, 4 Allen, 321, 324; and 
 
 Stuart ». Bute, 9 H. L. Cas. 440, and infra, ch. 11. 
 
 on this subject generally see Phillimore, ^ Nngent v. Vetzera, L. R. 2 Eq. 
 
 Int. L. vol. iv. no. 548 et seq. ; Westlake, Cas. 704 ; Di Savini v. Lousada, 18 
 
 Priv. Int. L. 2d ed. §§ 5-9 ; Foote, W. K. 425; and see infra, ch. 11. 
 60 
 
§ 35.] USES OF DOMICIL. [CHAP. 11. 
 
 will be exercised in accordance with what the court conceives 
 to be the best interests of the ward. 
 
 With respect to the movables, Story ' lays down the follow- 
 ing as the fully recognized doctrine both in England and in 
 America, namely : " No foreign guardian can virtute officii 
 exercise any rights or power or functions over the movable 
 property of his ward which is situated in a different State or 
 country from that in which he has obtained his letters of 
 guardianship. But he must obtain new letters of guardianship 
 from the local tribunals authorized to grant the same, before 
 he can exercise any rights, powers, or functions over the 
 same." But here again the domiciliary appointment becomes 
 important both with respect to the grant of local guardianship 
 and because it is the constant practice of our courts (regulated 
 in many States by statute) to direct the payment, upon proper 
 conditions, to the domiciliary guardian of the proceeds of 
 property, real and personal, in the hands of ancillary local 
 guardians. Perhaps the whole matter may be thus summed 
 up ; namely, that the domiciliary guardian has virtute officii 
 no authority beyond the territorial limits of the State or 
 country appointing him,^ but that he will usually be every- 
 where recognized as possessing superior rights upon properly 
 satisfying the local tribunal that such right will be exercised 
 for the best interests, personal and pecuniary, of the ward. 
 
 § 35. Minority and Majority. — It has been frequently laid 
 down that the question of the majority or minority of a per- 
 son is to be determined by the law of his domicil. This is 
 particularly true of the writings of the older continental jurists. 
 But such a rule cannot be said now to prevail anywhere — 
 even upon the Continent — without much qualification. 
 
 As to the capacity, with respect to age, of a person to enter 
 into a valid contract (other than the contract of marriage), 
 the law does not appear to be entirely settled in England. In 
 the early case of Male v. Roberts,^ Lord Eldon declared that 
 
 ' Confl. of L. § 504 a. This state- and under certain limitationa. See 
 
 ment must be now somewhat modified Wharton, Confl. of L. § 263, note 1. 
 in view of the existence of statutes in ' Except as stated in the last note, 
 some of the States permitting foreign i 3 Esp. 163. 
 guardians to act upon certain conditions 
 
 61 
 
§35.] 
 
 THE LAW OP DOMICIL, 
 
 [chap. II. 
 
 questions of this character are to be decided according to the 
 law of the country where the contract arises. But in several 
 late cases there are dicta broadly in favor of the lex domicilii? 
 In this country there is a decision of the New York Supreme 
 Court 2 in favor of the lex loci contractus, and the opinions of 
 the majority of the best text-writers in both countries are the 
 same way ; * as also is the analogy to be drawn from the 
 American cases upon the capacity of married women.^ In 
 the celebrated case of Saul v. His Creditors,^ which has been 
 much criticised and much misunderstood, Porter, J., used 
 language which when rightly interpreted amounts to this ; 
 namely, that, when the defence of infancy is set up to a con- 
 tract, the Louisiana courts will apply either the lex domicilii 
 or the lex loci contractus, as the one or the other will the more 
 
 ^ In Sottomayor v. De Barros, L. E. 
 3 P. D. 1, 5, Cotton, L. J., said : " It 
 is a well-recognized principle of law that 
 the question of personal capacity to enter 
 into any contract is to be decided by the 
 law of domicil." And again, "As in 
 other contracts, so in that of marriage, 
 personal capacity must depend on the 
 law of domicil." See also the dictum 
 of Lord Westbury, in Udny v. Udny, 
 L. E. 1 Sch. App. 411, 457, quoted 
 supra, § 29. 
 
 8 Thompson v. Ketcham, 8 Johns. 
 190, Kent, C. J., delivering the opinion. 
 
 * Story, Confl. of L. §§ 82, 102, 103, 
 242, 332 ; Kent's Comm. vol. ii. p. 
 233, note c ; Parsons on Contracts, vol. 
 iii. pt. 2, ch. 2, § 3, p. 575, 5th ed. ; 
 Wharton, Confl. of L. §§ 114, 115 ; 
 Dicey, Dom. rule 31, pp. 177-179; 
 Foote, Priv. Int. Jur. pp. 31, 260, 261 ; 
 Sehouler, Domestic Relations, p. 521. 
 Westiake seems to prefer the lex domi- 
 cilii, Priv. Int. L. 1st ed. no. 401, p. 
 237 ; 2d ed. p. 40. 
 
 s See infra, § 38. 
 
 « 5 Mart. (n. s.) 569, 596. In this 
 case, Porter, J., delivering the opinion of 
 the court, used the following oft quoted 
 and much criticised language : " The 
 writers on this subject, with scarcely any 
 exception, agree that the laws or statutes 
 which regulate minority and majority, 
 62 
 
 and those which fix the state and con- 
 dition of man, are personal statutes, and 
 follow and govern him in every country. 
 Now, supposing the case of our law fix- 
 ing the age of majority at twenty-five, 
 and the country in which a man was 
 bom and lived previous to his coming 
 here placing it at twenty-one, no objec- 
 tion could be perhaps made to the rule 
 just stated, and it may be, and we be- 
 lieve, would be true, that a contract made 
 here at any time between the two peri- 
 ods already mentioned would bind him. 
 But reverse the facts of this case, and 
 suppose, as is the truth, that our law 
 placed the age of majority at twenty- 
 one ; that twenty-five was the period 
 at which a man ceased to be a minor 
 in the country where he resided ; and 
 that at the age of twenty-four he came 
 into this State, and entered into con- 
 tracts, — would it be permitted that he 
 should in our courts, and to the demand 
 of one of our citizens, plead as a pro- 
 tection against his engagements, the laws 
 of a foreign country, of which the people 
 of Louisiana had no knowledge ; and 
 would we tell them that ignorance of 
 foreign laws, in relation to a conti-act 
 made here, was to prevent them enforc- 
 ing it, though the agreement was bind- 
 ing by those of our own State ? Most 
 assuredly we would not." 
 
§36.] 
 
 USES OF DOMICIL. 
 
 [chap. II. 
 
 tend to support the validity of the contract. And this is 
 substantially the same rule as was subsequently enacted in 
 both the Prussian and the Austrian Codes.' The same princi- 
 ple was applied by Lord Romilly in Be Hellman's Will ^ in 
 fixing the time for the payment of a legacy. 
 
 Dicey * lays it down that the capacity of any person for the 
 alienation of movables depends (so far as the question of 
 infancy or majority is concerned) on the law of that person's 
 domicil. 
 
 Testamentary capacity ^^ and capacity for marriage ^^ will 
 be hereafter considered. 
 
 § 36. Marriage. — With regard to the formal requisites of 
 a valid marriage, it is now generally agreed that the lex loci 
 celebrationis furnishes the true test.^ At least it may be laid 
 down as the general rule, that a marriage celebrated in ac- 
 cordance with the formalities required by that law will be 
 considered in this respect valid everywhere,^ although it may 
 be added that in some cases also the marriage will be held 
 valid if celebrated in accordance with the formal requirements 
 of the lex domicilii.^ 
 
 ' See Westlake, Priv. Int. L. 2d ed. 
 pp. 29, 30. 
 
 8 L. R. 2 Eq. Cas. 363. 
 
 9 Dom. rule 32, pp. 179, 180. 
 l« Infra, § 43. 
 
 " Infra, § 36. 
 
 1 Story, Confl. of L. §§ 79 et seq. , 260, 
 and ch, 5, passim ; Barge, For. & Col. 
 L. p. 184 et seq. ; Savigny, System, etc. 
 § 381 (Guthrie's trans, p. 323); Philli- 
 more. Int. L. vol. iv. no. 394; Westlake, 
 Priv. Int L. 1st ed. no. 344 ; Id. 2d 
 ed. §§ 13-16 ; Foote, Prir. Int. Jur. pp. 
 48-52 ; Dicey, Dom. rule 44, p. 200 et 
 seq. ; Fraser, Husband and Wife, p. 
 1309; Wharton, Confl. of L. § 169 ; 
 Bishop, Marr. & Div. vol. i. § 371 et 
 seq. ; Schouler, Domestic Relations, p. 
 47 ; Kent's Comm. vol. ii. p. 91. 
 Philliraore (uhi supra) says : "That 
 the law of the place of celebration is 
 binding as to outward form is a recepta 
 sententia of Private International Law." 
 Bar (§ 91, Gillespie's trans, p. 368), 
 
 while admitting that the rule loms 
 regit actum is generally prevalent with 
 respect to the form of celebration of 
 marriage, himself prefers the lex domi- 
 cilii of the husband at the time of the 
 celebration. He, however, cites numer- 
 ous authorities to the contrary. For 
 qualifications of the general rule, see 
 Wharton, Confl. of L. § 170 et seq. 
 
 ^ See authorities cited in the last 
 note. 
 
 = Bishop, Marr. & Div. vol. i. § 392 
 et seq. ; Story, Confl. of L. § 79 ; Burge, 
 For. & Col. L. vol. i. p. 168 ; Dicey, 
 Dom. pp. 201, 209-211; Bar, § 91 
 (Gillespie's trans, p. 368, and note 2) ; 
 Ending v. Smith, 2 Hagg. Cons. 371 ; 
 Phillips V. Gregg, 10 Watts, 158. This 
 principle is particularly applicable to 
 marriages in barbarous and uninhabited 
 lands. The British legislation on this 
 matter, however, applies to all British 
 subjects (Westlake, Priv. Int. L. 2d ed. 
 p. 57 J Dicey, Dom. uU supra); md in 
 
 63 
 
§ 36.] THE LAW OP DOMICIL. [CHAP. II. 
 
 But with respect to the capacity of the parties to a mar- , 
 riage there has been much discussion and diversity of opinion. 
 Two principal theories have been held : (1) that matrimonial 
 capacity is determined by the law of the place of solemniza- 
 tion ; (2) that it is determined by the law of the domicil of 
 the parties. To these Wharton* has added a third, which 
 concerns mainly our own country; namely, that "our na- 
 tional policy in this respect is to sustain matrimonial capacity 
 in all cases of persons arrived at puberty and free from the 
 impediments of prior ties." Upon this question the doctrine 
 of the English cases is in a far from satisfactory condition. 
 The earlier cases ^ were supposed to have settled the rule 
 upon the basis of the lex loci celebrationis,^ but the later cases 
 have shaken this doctrine ; and in view of the recent decision 
 of the Court of Appeal in Sottomayor v. De Barros,^ the rule 
 may at present be considered to be, that the lex domicilii of the 
 parties is the test ; and further, that where the domicils of the 
 parties are different, that of the man is to govern, notwith- 
 standing that the lex domicilii of the woman pronounces her 
 incapable of entering into the particular marriage.* In this 
 country it is different ; for, although there are some conflict- 
 ing decisions, it is pretty thoroughly settled that the law of 
 the place of solemnization furnishes the rule.^ This is in 
 accordance with the very decided opinion of Story.^" 
 
 this instance it may be said that the ' Story, Confl. of L. §§ 79 et seq., 102 
 
 national law and not the lex domicilii et seq., 113, and ch. 5, passim; Kent's 
 
 is applicahle. Comm. vol. ii. p. 91 et seq. ; Bishop, 
 
 4 Confl. of L. § 165. Marr. & Div. vol. i. § 371 et seq. ; 
 
 Sorimshire v. Scrimshire, 2 Hapg. Schouler, Domestic Relations, pp. 47, 
 
 Cons. 395 ; Middleton v. Janverin, id. 48 ; Patterson v. Gaines, 6 How. 550 ; 
 
 437 ; and others. Phillips v. Gregg, 10 Watts, 158 ; Com- 
 
 6 Story, Confl. of L. §§79 eisey., 102 monwealth i>. Lane, 113 Mass. 458; 
 
 et seq., 113, and ch. 5, passim ; Burge, Van Voorhis d. Brintnall, 86 N. Y. 18. 
 
 For. & Col. L. p. 184 et seq. ; Kent's See particnlarly the last two cases and 
 
 Comm. vol. ii. p. 91 e< seq. the cases therein cited. lu Common- 
 
 1 L. R. 3 P. D. 1 ; Brook v. Brook, wealth v. Lane, Gray, C. J., collects the 
 
 9 H. L, Cas. 193, tended in the same authorities very fully, and lays down 
 
 direction, as also Mette v. Mette, 1 the following as the oon-eot doctrine: 
 
 Swab. & Tr. 416. " What marriages between our citizens 
 
 8 Sottomayor v. De Barros, ubi supra, shall be recognized lis valid in the Com- 
 
 and L. R. 5 P. D. 94. Mette v. Mette, monwealth, is a subject within the power 
 
 supra, is the converse of this. of the Legislature to regulate. But 
 
 1" Confl. of L. uU supra. 
 
 64 
 
§ 37.] USES OF DOMICIL. [CHAP. II. 
 
 Of course, when -we speak of a marriage being valid by a 
 , particular law, it must be understood that such law is appli- 
 cable only in so far as it permits marriages which are not 
 polygamous, or incestuous according to the generally received 
 opinion in Christendom. Therefore, a polygamous marriage 
 of Americans in Turkey would not, upon the theory of the 
 applicability of the lex loci celebrationis, be recognized by the 
 courts of this country as valid ; nor would such a marriage in 
 England of domiciled Turks be, upon the theory of the lex 
 domicilii, recognized by the English courts as valid. In either 
 case the marriage would be considered as contrary to good 
 morals and the policy of the lex fori, and therefore would be 
 deemed void. 
 
 § 37. Mutual Property Rights of Husband and Wife. — The 
 marriage being assumed to be valid, in the absence of any 
 settlement or express contract, the mutual rights of the hus- 
 band and the wife in immovable property belonging to either 
 of them are of course determined by the lex loci rei sitae under 
 our jurisprudence,' although many high authorities on the 
 Continent contend for a different rule.^ 
 
 As to movable property domicil plays an important part. 
 The mutual rights of the parties in the movable property 
 belonging to either of them at the time of the marriage are 
 
 when the statutes are silent, questions bring it within the exception on account 
 
 of the validity of marriages are to be de- of polygamy, one of the parties must 
 
 termined by the jus gentium, the com- have another husband or wife living, 
 
 mon law of nations, the law of nature as To bring it within the exception on the 
 
 generally recognized by all civilized ground of incest, there must be such a 
 
 peoples. By that law the validity of a relation between the parties contracting 
 
 marriage depends upon the question as to make the marriage incestuous ac- 
 
 whether it was valid where it was con- cording to the general opinion of Chris- 
 
 tracted ; if valid there, it is valid every- tendom ; and by that test the prohibited 
 
 where. The only exceptions admitted degi'ees include, beside persons in the 
 
 by our law to that general rule are of direct line of consanguinity, brothers 
 
 two classes : 1st. Marriages which are and sisters only, and no other collateral 
 
 deemed contrary to the law of nature as kindred." 
 
 generally recognized in Christian coun- i Story, Confl. of L. §§ 159, 186, 454, 
 
 tries. 2d. Marriages which the legis- 483 ; Westlake, Priv. Int. L. 2d ed. 
 
 lature of the Commonwealth has declared §31; Burge, For. & Col. L. vol. i. p. 
 
 shall not be allowed any validity, be- 618 ; Wharton, Confl. of L. § 191. 
 cause contrary to the policy of our own ^ Savigny, System, etc. § 379 (Guth- 
 
 laws. The first class includes only those rie's trans, p. 292 and authorities cited) ; 
 
 void for polygamy or for incest. To and see Bar, § 94. 
 
 5 65 
 
§ 37.] THE LAW OP DOMICIL. [CHAP. 11. 
 
 regulated by the law of the matrimonial domicil ; ^ which may 
 be described as the domicil which is contemplated or intended 
 by the parties at the time of the marriage.* TJsiially, but not 
 necessarily, this is the domicil of the husband at that time ; 
 but it may be the domicil of the wife, if the parties intend to 
 dwell at the place of that domicil ; or it may be at a third 
 place, if the parties intend to dwell there. In the absence, 
 however, of proof to the contrary, the domicil of the husband 
 at the time of the marriage will be presumed to be the 
 matrimonial domicil. 
 
 As to property acquired by either of the parties after 
 the marriage, there has been much difference of opinion. 
 The continental jurists generally contend that the law of the 
 matrimonial domicil governs throughout the existence of the 
 marital relation, and applies not only to property owned by 
 the spouses at the time of the marriage, but also to subsequent 
 acquisitions.^ But with respect to the latter the doctrine is 
 now settled in this country that they are governed by law of 
 the actual domicil.* This was early declared to be the true 
 rule by Story, and is now abundantly supported by the decided 
 cases. In England the question is not settled by judicial 
 decision, and the opinions of the text-writers, when expressed 
 at all, appear to be divided.^ 
 
 5 Story, Confl. of L. §§ 143 et seq., rie's trans, p. 293 and authorities cited) ; 
 186 ; Burge, For. & Col. L. vol. i. p. 619 Bar, § 96 and authorities cited. See 
 et seq. ; Phillimore, Priv. Int. L. nos. Burge, For. & Col. L. vol. i. ch. 7, 
 445, 456 et seq. ; Westlake, Priv. Tnt. sec. 8, passim ; Stoiy, Confl. of L. § 161 ■ 
 Ij. 1st ed. no. 366 et seq. ; Id. 2d ed. et seq. 
 
 § 32 ; Foote, Priv. Int. Jur. p. 240 et e story, Confl. of L. § 187 ; "Whar- 
 
 seq.; Dicey, Dom. rule 60, p. 268 et seq. ; ton, Confl. of L. § 196 ; Bishop, Marr. 
 
 Wharton, Confl. of L. § 187 et seq. ; & Div. vol. i. § 405 ; Id. Law of Mar. 
 
 Parsons, Contracts, vol. ii. p. 290 ; ried Women, vol. ii. § 569 ; Schouler, 
 
 Savigny, System, etc. § 379 (Guthrie's Domestic Kelations, p. 67. This point 
 
 trans, p. 292); Harral «. Harral, 39 was decided in the celebrated case of 
 
 N. J. Eq. 279. Saul v. His Creditors, 5 Mart. (n. s.) 
 
 * Story, Confl. of L. §§ 191-199 ; 569. 
 Burge, For. & Col. L. vol. i. p. 244 et ' Burge, For. & Col. L. vol. i. p. 
 
 seq. ; Wharton, Confl. of L. § 190 ; 619 et seq., states the view that the law 
 
 Dicey, Dom. p. 269 ; Bar, § 96 (Gilles- of matrimonial domicil governs future 
 
 pie's trans, pp. 401, 402, and note o, p. acquisitions, notwithstanding a change 
 
 403) ; Bishop, Marr. & Div. vol. i. § 404; of domicil, to he the prevailing one ; hut 
 
 Harral v. Harral, supra ; Le Breton v. himself appears to incline to the op- 
 
 Nouohet, 3 Mart. 60. posite view. The same may he said 
 
 6 Savigny, System, etc. § 379 (Guth- of Dicey, Dom. p. 270 et seq. ; while 
 
§ 39.] USES OP DOMICIL. [CHAP.. II. 
 
 § 37 a. Construction of Marriage Contracts. — Domicil is also 
 of some importance in the construction of marriage contracts.^ 
 It is by no means controlling, however ; and no definite rule 
 upon the subject can be laid down, inasmuch as i'n the con- 
 struction of such instruments, just as in the construction of 
 other contracts, a variety of matters must be taken into con- 
 sideration, and each case must to a large extent stand upon 
 its own circumstances. 
 
 § 38. Capacity of Married Women to make Valid Contracts. — 
 As to capacity to make valid contracts, much that has been 
 heretofore said with respect to nonage applies also to cover- 
 ture. Continental authorities assume the personal law (that is, 
 that of the domicil, or nationality according to the new theory) 
 as decisive.^ In England the" question is an open one, with 
 recent dicta in favor of the same view.^ But on the other 
 hand it may now be considered as settled in this -country, that 
 the capacity of a married woman to enter into a binding 
 contract is to be determined by the lex loci contractus? This 
 question was examined at length by Gray, C. J., in the recent 
 Massachusetts case of Milliken v. Pratt,* and the result indi- 
 cated was reached after an elaborate review of the authorities. 
 There are decisions to the same effect in other States. This 
 view has also received the unqualified support of Story and 
 Wharton. 
 l/\ 39. Jurisdiction in Divorce Cases, i — It is undoubtedly 
 
 "Westlake takes distinct ground in favor 'pasai'm,,,% 1S6 et seg. ; Asser et Rivier, 
 
 of the continental view. Priv. Int. L. Droit Int. Prive, no. 47 ; Foelix, Droit 
 
 1st ed. no. 368 ; 2d ed. p. 641. An Int. Prive, t. 1, 1. 2, t. 1, c. 2 ; Fiore, 
 
 Irish Case, He Lett's Trusts, 7 L. R. Ir. Droit Int. Privi (by Pradier-Foder^), 
 
 132, appears to support the American § 105 et seq. 
 view. ^ See supra, § 35, note 2. 
 
 1 Phmimore, Int. L. vol. iv. p. 329 « Story, Confl. of L. § 103, and 102 
 
 et seq. ; Westlake, Priv. Int. L. Ist ed. note (a), 8th ed.; Wharton, Confl. of L. 
 
 no. 371 ; Id. 2d ed. p. 68 ; Foote, Priv. § 118; Milliken v. Pratt, 125 Mass. 374 ; 
 
 Int. Jur. pp. 241-243; Dicey, Dom. Bell i;. Packard, 69 Me. 1 05 ; Halley ». 
 
 p. 273 et seq. ; Wharton, Confl. of L. Ball, 66 111.250; Pearl i). Hansborough, 
 
 § 199 ; Bishop, Marr. & Div. vol. L 9 Humph. 426; Mussou v. Trigg, 51 
 
 § 404. Miss. 172. This appears also to he the 
 
 1 Savigny, System, etc. § 362 ; Bar, view of the Scotch courts. Fraser, Hus- 
 
 § 95 (Gillespie's trans, p. 396 and au- hand & Wife, vol. ii. p. 318. See also 
 
 thorities cited). See also the authorities Dicey,Dom. pp. 193, 194, andWestlake, 
 
 collected by Burge, For. Col. L. vol. i. Priv. Int. L. 1st ed. no. 404. 
 ch. 6, § 2, and Story, Confl. of L. ch. 4, * Supra. 
 
 67 
 
§ 39.] THE LAW OF DOMICIL. [CHAP. II. 
 
 competent for the sovereign power of any State or country 
 to confer upon its tribunals such jurisdiction in matters of 
 divorce as it deems proper, and a decree pronounced by a 
 competent tribunal under authority so conferred would neces- 
 sarily be held valid and binding within the territorial limits 
 of the State or country whose tribunal it was. But what 
 effect, if any, would elsewhere be given to such a decree, 
 depends mainly upon whether the jurisdiction of the court 
 pronouncing it has been conferred and exercised in accord- 
 ance with the generally received principles of international 
 law. The test, therefore, of the validity, as to jurisdiction, 
 of a domestic divorce is anything which the law-making power 
 chooses to enact, while the test, as to jurisdiction, of the 
 validity of a foreign divorce is, according to the generally 
 received view, the, domicil of the parties.^ The place of the 
 celebration of the \piarriage is immaterial ; and so, according 
 to almost all the authorities, is the place of the commission of 
 the offence. 
 
 In England there has been considerable confusion in the 
 decisions and judicial expressions of opinion upon the ques- 
 tion of jurisdiction. Until the Statute of 20 and 21 Vict, 
 c. 85, which went into operation in 1858, divorces a vinculo 
 could be granted only by act of Parliament. Since that time 
 they have been grantable for certain causes by a special 
 court created by that act, and since become one of the divi- 
 sions of the High Court of Justice. The jurisdiction of the 
 court is, therefore, purely statutory, and was, until recently,' 
 generally understood, although the matter was not considered 
 as settled, to depend upon the domicil of the parties. But in 
 Niboyet v. Niboyet,^ which was decided by a divided Court 
 of Appeal, it was held to depend upon residence somewhat 
 short of domicil. This, however, is merely the result of the 
 
 1 story, Confl. of L. § 229 a, note Int. L. 1st ed. no. 361 et seq. ; Id. 
 
 (a), and § 230 a ; Surge, For. & Col. 2d ed. § 46 ; Dicey, Dom. rule 46, 
 
 L. vol. i. ch. 8, § 2, passim, and particu- pp. 225-228, 233-242 ; Piggott, Foreign 
 
 larly from p. 680 to end of section ; Judgments, p. 280 et seq. ; Foote, Priv. 
 
 Savigny, System, etc. 379 (Guthrie's Int. Jnr. p. 61 et seq. ; Wharton, Confl. 
 
 trans, p. 299); Bar, § 92 (Gillespie's of L. ch. 4, § 10, passim; Bishop, Marr. 
 
 trans, p. 373 et seq.) ; Phillimore, Int. & Div. vol. ii. §§ 141 et seq., 144 et seq. 
 L. vol. iv. ch. 21, 22 ; "Westlake, Priv. " l. jj. 4 p. p. 1. 
 
 68 
 
§ 39.] USES OP DOMICIL. [CHAP. II. 
 
 construction of the act of Parliament conferring jurisdiction 
 upon this particular court,* and does not in the slightest 
 degree affect the doctrine held by the English courts with 
 respect to the international validity of foreign divorces. In- 
 deed, the English courts have constantly refused to recognize 
 as valid Scotch divorces pronounced upon jurisdictional facts 
 similar to those upon which the English Divorce Court finds 
 itself compelled by act of Parliament to assume jurisdiction. 
 "With respect to foreign divorces, it was formerly supposed 
 that a marriage celebrated in England could not be dissolved, 
 except by act of Parliament, and it was therefore held that 
 the decree of a foreign court dissolving such marriage was void, 
 even though the parties were, both, at the time of the mar- 
 riage and of the divorce proceedings, domiciled in the country 
 of forum^ But this doctrine has now been thoroughly over- 
 turned, and the test which will be applied by the British 
 courts to the jurisdiction of a foreign tribunal pronouncing 
 a decree in divorce is the domicil of the parties. This has 
 recently been held in the House of Lords in a case ^ in which 
 the matrimonial domicil continued up to the time the pro- 
 ceedings were had. And in view of the strong dicta ^ on the 
 
 ' In Harvey v. Famie, L. E. 6 P. D. ley's Case, Euss. & Ry. 237, which he 
 35, Cotton, L. J., who was one of the understood in this sense. But see re- 
 majority of the Court of Appeal in Ni- marks of Lord Selborne in Harvey v. 
 hoyet V. Niboyet, said of that case : Farnie, L. E. 8 App. Gas. 43. 
 " What was said by Brett, L. J. [who ' Harvey v. Farnie, supra, affirming 
 favored domicil as the test of the juris- s. c. L. R. 6 P. D. 35, and 5 id. 153. 
 diction of the court], was in favor of The same had long before been settled 
 the respondent to this appeal, and he for Scotland in Warrender v. Warrender, 
 was in the minority ; but the decision 2 CI. & F. 488. 
 
 of the other members of the court turned * Among others may be particularly 
 entirely upon the construction of the mentioned those of Lord Westbury in 
 English Act of Parliament, and they Shaw v. Gould, L. K. 3 H. L. 55, and 
 said, whatever might have been the of Lord Penzance in Shaw v. Attorney- 
 consequences independently of those General, L. E. 2 P. fc D. 156 ; Manning 
 words, this Act of Parliament gives to u. Manning, id. 223, and Wilson v. Wil- 
 us, an English court, jurisdiction in the son, id. 435. In Shaw v. Gould, Lord 
 matter, and says what is to be the con- Westbury said : "If, as is certain, the 
 sequence, if certain facts are proved in domicil of origin may be effectually put 
 a suit and brought before us under the off, and a new domicil acquired by per- 
 Act. That was the ratio decidendi in sons who are sui juris, it must follow 
 that case." that such persons thereby become, to 
 
 * See particularly McCarthy v. De all intents and purposes, subject to, and 
 
 Caix, 2 Euss. & M. 614, where Lord entitled to the benefit of, the laws and 
 
 Brougham applied the doctrine of Lol- institutions of the adopted country, in 
 
 69 
 
§39.] 
 
 THE LAW OF DOMICIL. 
 
 [chap. II. 
 
 subject, there is little doubt that the same doctrine will be 
 held in cases where the matrimonial domicil has been changed ; 
 or, in other words, the test which will be applied is the domi- 
 cil of the parties at the time of the commencement of the 
 proceedings. 
 
 In this country the decisions on the subject of divorce 
 jurisdiction are very numerous and very conflicting ; but the 
 one principle which may above all others be extracted from 
 them is that jurisdiction depends upon domicil.'' But what 
 domicil ? In the first place, the suit need not be brought at 
 the place of the matrimonial domicil. If there has been a 
 hona fide change of domicil to. another State, the courts of 
 that State will have jurisdiction. Again, it has been held in 
 some of the States that the proceedings must be had at the 
 place of the domicil of the parties existing at the time the 
 cause of divorce arose.^ But the weight of authority is now 
 against this position.^ It may therefore be laid down that 
 jurisdiction depends upon domicil existing at the time the 
 proceedings are begun.^" 
 
 like manner as they were entitled and 
 subject to the laws of the domicil of 
 origin, and that without becoming aliens 
 in their own native country. . . . The 
 position that the tribunal of a foreign 
 country having jurisdiction to dissolve 
 the marriages of its own subjects is 
 competent to pronounce a similar decree 
 between English subjects who were mar- 
 ried in England, but who before and at 
 the time of the suit are permanently 
 domiciled within the jurisdiction of such 
 foreign tribunal, such decree being made 
 in a hmia fide suit without collusion or 
 concert, is a position consistent with all 
 the English decisions, although it may 
 not be consistent with the resolution 
 commonly cited as the resolution of the 
 judges in LoUey's case." In Shaw v. 
 Attorney-General, Lord Penzance said : 
 " To my mind it is manifestly just and 
 expedient that those who may have 
 permanently taken up their abode in 
 a foreign country, resigning their Eng- 
 lish domicil, should, in contemplation 
 of English law, be permitted to resort 
 with effect to the tribunals exercising 
 
 70 
 
 jurisdiction over the community of 
 which, by their change of domicil, they 
 have become a part, rather than they 
 should be forced back for relief upon 
 the tribunals of the country they have 
 abandoned." 
 
 ' See the American works cited, su- 
 pra, note 5, and the cases cited by 
 them and in the following notes. 
 
 ' Dorsey v. Dorsey, 7 Watts, 349 ; 
 McDermott's Appeal, 8 Watts & S. 
 251 ; Bishop v. Bishop, 30 Pa. St. 412 ; 
 Leithv. Leith, 39 N. H. 20, and numer- 
 ous earlier cases in New Hampshire ; 
 Edwards v. Green, 9 La. Ann. 317 ; and 
 see Hare v. Hare, 10 Tex. 355. 
 
 s Wharton, Confl. of L. § 231 ; 
 Bishop, Marr. & Div. vol. ii. § 172 et seq. 
 10 Wharton, Confl. of L. §§ 223, 
 231 ; Bishop, Marr. & Div. vol. ii. 
 § 172 et seq., and cases cited. It is 
 superfluous to cite cases upon this point. 
 It may be considered as now thoroughly 
 established in this country, except per- 
 haps in Pennsylvania, where a doctrine, 
 which, although it has much to recom- 
 mend it, is peculiar to that State, has 
 
§ 40.] USES OP DOMICIL. [CHAP. II. 
 
 But whose domicil is to govern ? We shall see hereafter 
 that for all purposes other than divorce the domicil of the 
 wife follows that of the husband." But if the husband deserts 
 his wife and establishes his domicil in another State, it would 
 be contrary to the dictates of natural justice and would only 
 assist him in the perpetration of a wrong, either to deprive 
 her of her remedy entirely or to compel her to follow him 
 from State to State to seek redress. It is therefore well and 
 properly settled that the courts of the State in which the 
 parties were domiciled at the time of the desertion will enter- 
 tain her suit and give her redress.'^ But then arises the 
 question: Is this an exception to the rule that jurisdiction 
 depends upon domicil, or to the rule that the wife's domicil 
 follows that of her husband ? The authorities generally take 
 the latter position, and hold that a wife entitled to a divorce 
 may for the purposes of divorce have a domicil of her own.'^ 
 And further it is held that under similar circumstances a wife 
 may, quitting the place of the common domicil, go into an- 
 other State and establish there an entirely new domicil for 
 the purposes of divorce.^* Questionable as this doctrine may 
 be upon general principles, and out of consonance as it cer- 
 tainly is with the principles of international law, as under- 
 stood in other countries, it has the support of a number of 
 decided cases in this country. 
 
 There are many other positions and distinctions declared 
 in the decided cases both of this country and England ; but 
 enough has been said to show the important part which is 
 played by domicil in the law of marriage and divorce. 
 
 § 40. Relation of Domicil to Assignments of Movables, — 
 " Mobilia sequuntur personam," or, as it was sometimes 
 
 been adopted. It is there held that the Supreme Court of Pennsylvania de- 
 proceeding for divorce must be had at clarej, in a proceeding for dower, to 
 the place of the last common domicil of be null and void, holding that the 
 the parties. Thus A., who had previously proper forum was in Pennsylvania, 
 been domiciled in Pennsylvania, de- Reel v. Elder, 62 Pa. St. 308 ; Colvin 
 serted his wife there and went to Ten- v. Eeed, 55 id. 375; 
 nessee, where he acquired a domicil, his ^^ Infra, eh. 10. 
 wife continuing to dwell in Pennsyl- i^ This subject is considered infra, 
 vania. The latter having subsequently ch. 10. 
 committed adultery, A. obtained a di- i* See infra, ch. 10. 
 vorce therefor in Tennessee, which the " See infra, ch. 10. 
 
 71 
 
§ 40.] THE LAW OF DOMICIL. [CHAP. II, 
 
 strongly expressed, " Mobilia ossibus inhaBrent," was admitted 
 by the older authorities as a maxim of very wide application, 
 and hence, upon the assumption that movables could have no 
 situs, they were considered as subject in almost all respects to 
 the lex domicilii of their owner. But in modern practice so 
 many exceptions have been admitted to this principle as to 
 almost entirely destroy its force as a rule. It will be impos- 
 sible in this sketch to enter into any detailed account of these 
 exceptions. We must content ourselves with a brief state- 
 ment of a few of the most important principles upon the 
 general subject of the assignment of movables. 
 
 With respect to the assignment of particular corporeal 
 chattels as distinguished from the general mass of the mov- 
 able property of the owner, the tendency of modern theory 
 and practice has been to recognize the lex loci rei sitce as the 
 applicatory law.^ And this may be said to be the now gen- 
 erally received view in England and in this country, both 
 among the text-writers and in the decided cases.^ It is true 
 that Story ,^ largely upon the authority of the older conti- 
 nental writers and the dictum of Lord Loughborough in Sill v. 
 Worswick,* in general leans strongly towards the application 
 of the lex domicilii, although he admits that in many cases 
 the law of the situs would be equally applicable, and in some 
 cases entitled to superior respect. 
 
 Assignments of debts are in general, but subject to many 
 qualifications, governed by the lex domicilii of the creditor. 
 This seems to be now settled in this country,^ but in England 
 there are no decisions exactly in point. 
 
 § 41. General Assignments ; Bankruptcy. — But there are 
 several kinds of assignments en m,asse of movables, which 
 
 1 Savigny, System, etc. §§ 366, 367 ; = See the English and American 
 
 Bar, § 67 et seq. ; Waechter, Die Col- works mentioned in the last note and 
 
 lision der Privatrechtgesetze Verschie- the cases by them cited. See also the 
 
 dener Staaten, Arohiv fiir Civilistisehe cases cited by the editor of the eighth 
 
 Praxis, vol. xxiv. pp. 292-298 ; West- edition of Story, Confl. of L. in note 
 
 lake, Priv. Int. L. 1st ed. no. 360 (a.) to § 383 of that work. 
 et seq.; Id. 2d ed. p. 154 et seq.; 8 gee Confl. of L. § 376 c< sey. 
 
 Foote, Priv. Int. Jur. p. 174 et seq. ; * 1 H. Bl. 665, 690. 
 Dicey, Dora, rule 51, pp. 246-249 ; « Wharton, Confl. of L. § 363 et 
 
 Wharton, Confl. of L. §§ 297 et seq., seq. ; Story, Confl. of L. 8th ed. §§ 362 
 
 334 et seq. et seq., 383 note {a), 395 et seq. 
 72 
 
§ 41.] USES OP DOMICIL. [CHAP. II. 
 
 have been treated of by text-writers and discussed in the 
 decided cases, and with respect to which the principle of 
 domicil has generally been acknowledged to be of consider- 
 able importance. They are, (1) Assignments by Marriage, 
 (2) by Bankruptcy, and (3) by Death, — that is, (a) Intestate 
 Succession and (6) Testamentary Succession. The first has 
 already been referred to. 
 
 In England it is held that an assignment in bankruptcy 
 under proceedings had at the place of the domicil of the 
 bankrupt operates upon all of the movables of the bankrupt 
 wherever found.^ This doctrine has been held as well in 
 favor of foreign bankruptcies as in favor of those of English 
 origin, and has been applied to the extent both of defeating 
 the attempt of the creditors of foreign bankrupts to obtain 
 preference out of movable assets in England, and of com- 
 pelling English creditors of an English bankrupt to make 
 restitution of funds received by them in payment of their 
 debts out of the movable assets of such bankrupt in foreign 
 countries ; an exception to the latter application being made 
 in favor of creditors who have obtained the payment of their 
 debts by the decision of foreign courts. 
 
 In this country the English rule was at first followed, even 
 the high authority of Chancellor Kent ^ supporting it ; but now 
 the doctrine is thoroughly settled the other way, that eminent 
 jurist candidly admitting in his Commentaries that " it may 
 now be considered as a part of the settled jurisprudence of 
 this country, that personal property as against creditors has 
 locality, and the lex loci rei sitae prevails over the law of the 
 domicil with regard to the rule of preference in the case of 
 insolvents' estates." ^ This doctrine is applied not only to for- 
 eign bankruptcy proceedings, but also as a principle of inter- 
 state law to insolvency proceedings which are in invitum.^ 
 
 1 Phillimore, Int. L. vol. iv. no. in Goodwin v. Jones, 3 Mass. 514, 517, 
 770 et seq. ; Westlake, Priv. Int. L. and cases cited by Story, Confl. of L. 
 1st ed, no. 277 et seq. ; Id. 2d ed. § 409, note 2. 
 
 § 125 ; Dicey, Dom. rale 63, p. 277 ' Kent's Comm. vol. ii. p. 406 ; 
 
 et seq. ; Wharton, Confl. of L. § 389 ; Story, Confl. of L. § 410 et seq. ; Whar- 
 
 Story, Confl. of L. §§ 403-409. ton, Confl. of L. § 390. 
 
 2 See Holmes v. Eemsen, 4 Johns. * "Wharton, Confl. of L. § 390 a. 
 Ch. 460 ; also remarks of Parker, C. J., 
 
 73 
 
§ 42.] THE LAW OP DOMiCIL. [CHAP. II. 
 
 But in the case of Yoluntary assignments for the benefit of 
 creditors, there has been some conflict of opinion. Story ^ 
 holds that they will, if valid by the law of the domicil of 
 the assignor, be allowed to prevail in other States, provided 
 they do not violate some positive law or rule of public 
 policy in the latter.^ But there has been an apparent ten- 
 dency to test their validity rather by the lex loci contractus 
 than by the lex domicilii, although the cases are not har- 
 
 monious, 
 
 7 
 
 § 42. Intestate Succession. — With the third kind of gen- 
 eral assignment of movables, — namely, personal succession, 
 whether testamentary or intestate, — domicil has much to do. 
 It is here that the maxim Mohilia sequuntur personam has its 
 most general and effective application. 
 
 It is a principle of international law, acknowledged in all 
 civilized countries (except in those in which the doctrine of 
 political nationality prevails), that in cases of intestacy the 
 distribution of movables is to be governed by the law of the 
 domicil of the deceased person existing at the time of his 
 death.' We have already seen when and how this rule was 
 introduced into the jurisprudence of Great Britain and this 
 country .2 Probably the only exception to the rule is in cases 
 of exemptions and inheritance taxes under the laws of other 
 States or countries, operating upon movables found within their 
 territorial limits. 
 
 ^ Confl. of L. §§ 411, 423 a, et seq. weight of both dicta and decisions now 
 
 See also Grier, J., in Caskie v. Wehster, seems to be in favor of the lex lod 
 
 2 Wall. Jr. C. Ct. 131, and opinion of contractus. 
 
 the court, per Miller, J., in Green v. >■ Story, Confl. of L.§ 480 cisej.; Phil- 
 Van Buskirk, 5 Wall. 307. limore. Int. L. vol. iv. no. 885; Savigny, 
 
 Md. § 416. System, etc. § 375 (Guthrie's trans, p. 
 
 ■f Burrill on Assignments, 4th ed. 272 ciseg.); Bar, § 107 (Gillespie's trans. 
 
 §§ 302 et seq., 310, and cases cited, p. ii5 et seq.); Westlake, Priv. Int. L. 
 
 The great difficulty in arriving at the 1st ed. no. 814 et seq. ; Id. 2d ed. §§ 54- 
 
 true ratio of the cases arises from the 56; Foote, Priv. Int. Jur. pp. 194-197 ; 
 
 fact that usually assignments are made Dicey, Dom. rules 66, 67, pp. 291- 
 
 at the place of the domicil of the as- 294 ; Eobertson, Pers. Sue, p. 118 and 
 
 signor, and therefore the lex domicilii passim. ; Williams on Executors, vol. ii. 
 
 and the lex loci contractus are coincident, pt. 3, bk. 4, oh. 1, § 5 ; Jarman on 
 
 In such cases the courts have frequently Wills, vol. i. ch. 1, p. 2 c( seq. ; Kent's 
 
 used language so loose as to render it im- Comm. vol. ii. p. 428 et seq. ; Whar- 
 
 possible to discern which they really ton, Confl. of L. § 561. 
 
 considered the applicatory law. But the ' Supra, §§ 17-20. 
 
 74 
 
§43.] 
 
 USES OF DOMICIL. 
 
 [chap. II. 
 
 § 43. Testamentary Succession; Validity of Wills. — In deter- 
 mining the validity of a testamentary disposition of movables, 
 three principal points are to be observed ; namely, (1) the 
 personal capacity of the testator; (2) the formal execution 
 of the testamentary instrument ; and (3) the special validity 
 of the particular disposition or provision in dispute. As re- 
 gards the first point, it has been uniformly held that capacity 
 to make a •will is to be determined by the lex domioilii of the 
 alleged testator.^ But as between domicil at the time of 
 making the supposed will and domicil at the time of the death, 
 in a case in which there has been a change of domicil, which 
 is to govern ? Story ^ has apparently, although not certainly, 
 
 1 Story, Confl. of L. ch. 11, § 465 et 
 seq.; Phillimore, Int. L. vol. iv. no. 863; 
 Dicey, Dom. rules 68 , 69, p. 294 et seq. ; 
 Foote, Priv. Int. Jur. p. 183 et seq. ; 
 Jarman on Wills, vol. i. pp. 2, 3 ; Wil- 
 liams on Executors, vol. i. p. 366 et 
 seq. ; Wharton, Confl. of L. § 568 et seq. 
 
 '2 Confl. of L. § 465. It is somewhat 
 difficult to arrive at Story's true opinion 
 upon this subject. In the section cited 
 he says : " So far as respects the capacity 
 or LQcapacity of a testator, to make a 
 will of personal or movable property, 
 we have already had occasion to consider 
 the subject in another place. The re- 
 sult of that examination was, that the 
 law of the actual domicil of the party, 
 at the time of the making of his will or 
 testament, was to govern as to that ca- 
 pacity or incapacity." Now, the discus- 
 sion to which he alludes had reference 
 more pailicularly to the question 
 whether capacity to do certain acts (and 
 among others, testamentary acts) is to 
 be determined by the law of the domi- 
 cil of origin or by that of the domicil 
 existing at the time the act is done ; and 
 the case which he had in view, when 
 writing the passage quoted, may have 
 been the one which so frequently arises; 
 viz., where domicil of origin has been 
 superseded by a new domicil which sub- 
 sists both at the time of the making of 
 the will and at the time when it goes 
 into effect, i. v., at the death of the tes- 
 tator. This conjecture is strengthened 
 
 by what follows. He next proceeds to 
 consider "the forms and solemnities by 
 which wills of personal estates are to be 
 governed," and after reviewing the au- 
 thorities, English, American, Scotch, 
 and continental, upon this subject, he 
 proceeds to consider (under a separate 
 title, § 473) the "eS'ect of change of 
 domicil." His own remarks under 
 this head are as follows : " But it may 
 be asked, What will be the effect of a 
 change of domicil after a will or tes- 
 tament is made of personal or mov- 
 able property, if it is valid by the law 
 of the place where the party was domi- 
 ciled when it was made, and not valid 
 by the law of his domicil at the time of 
 his death ? The tenns in which the 
 general rule is laid down would seem 
 sufliciently to establish the principle 
 that in such a case the will or testament 
 is void ; for it is the law of his actual 
 domicil at the time of his death, and 
 not the law of his domicil at the time of 
 making his will or testament of personal 
 property, which is to govern. This 
 doctrine is very fully recognized and 
 laid down by John Voet." He then 
 quotes from that great civilian several 
 passages, which, singularly enough, re- 
 late to testamentary capacity and not 
 to "forms and solemnities." These 
 considerations lead the writer to think 
 that the distinguished commentator on 
 the Conflict of Laws did not intend to 
 assert that the lex domicilii at the tim? 
 
 75 
 
§43.] 
 
 THE LAW OP DOMICIL. 
 
 [chap. 
 
 11. 
 
 declared in favor of the former ; and Phillimore ^ has followed 
 him. But this view does not appear to be maintained by the 
 weight of the authorities either in England or in this country, 
 which hold the doctrine that capacity to make wills, as well as 
 all other matters of testamentary validity, is to be determined 
 by the law of the domicil existing at the time of the death of 
 the supposed testator.* 
 
 As regards the formal execution and revocation of testa- 
 
 of the execution of the will is to deter- 
 mine questions of his testamentary ca- 
 pacity in preference to the lex domicilii 
 at the time of death ; although he has 
 been usually understood in a contrary 
 sense. It may be added that in Moul- 
 trie V. Hunt (23 N. Y. 394), Story was 
 understood both in the majority and 
 minority opinions of the court to have 
 special reference in § 473 to testamen- 
 tary capacity. But out of deference to 
 the generally received interpretation of 
 Story's language in § 466, the statement 
 has been made as above in the text. 
 
 s Int. L. vol. iv. no. 863 ; Dicey, 
 Dom. p. 311, takes the same view, also 
 relying upon Story, Confl. of L. § 46.5. 
 
 * This is to be gathered mainly, how- 
 ever, from the general terms in which 
 the rule as to testamentary validity is 
 laid down. Take for example the lan- 
 guage of Lord Westbury in Enohin v. 
 Wylie (10 H. L. Cas. 1, 13). He says: 
 " I hold it to be now put beyond all 
 possibility of question, that the admin- 
 istration of the personal estate of a de- 
 ceased person belongs to the court of 
 the country where the deceased was 
 domiciled at his death. All questions 
 of testacy and intestacy belong to the 
 judge of the domicil. It is the right and 
 duty of that judge to constitute the 
 personal representative of the deceased. 
 To the court of the domicil belongs the 
 interpretation and construction of the 
 will of the testator. To determine who 
 are the next of kin or heirs of the per- 
 sonal estate of the testator, is the pre- 
 rogative of the judge of the domicil. 
 In short, the court of the domicil is the 
 forum concursHs to which the legatees 
 under the will of a testator, or the par- 
 
 76 
 
 ties entitled to the distribution of the 
 estate of an intestate, are required to 
 resort." Moreover, the English court 
 will follow J, judgment obtained in the 
 country in which the testator or alleged 
 testator had his last domicil as to the 
 testamentary character of a document, 
 and its validity as a will or codicil, with 
 respect not only to the forms of execu- 
 tion, but also to every circum.stance on 
 which the validity of a will may depend. 
 "Westlake, Priv. Int. L. 2d ed. § 74, 
 and see also the succeeding sections of 
 the same book. But as directly in point 
 upon the statement above in the text, 
 see Wharton, Confl. of L. § 570; Jarman 
 on Wills, vol. i. pp. 2, 4 ; Williams 
 on Executors, vol. i. p. 866 ; Foote, 
 Priv. Int. Jur. pp. 183, 184. Saviguy 
 holds that the personal capacity of a 
 testator in respect to his legal relations 
 is to be determined by the concurrence 
 of the leges domicilii, both at the time 
 of the execution and the time of the 
 death, and therefore, if a will be invalid 
 for want of testamentary capacity ac- 
 cording to either law, it can have no 
 effect. But he holds that capacity with 
 respect to physical qualities (e. g., age) 
 is ruled by the law of the domicil at the 
 time of execution. System, etc. § 377 
 (Guthrie's trans, p. 282). Bar holds that 
 the law of the last domicil rules gener- 
 ally, but that a testament which is bad 
 from the beginning cannot be made good 
 merely by a subsequent change of domi- 
 cil, § 108 (Gillespie's trans, pp. 464, 
 465). See Asser et Rivier, Droit Int. 
 Priv. no. 64, to the same effect, apply- 
 ing, however, the principle of nationality 
 instead of domicil. 
 
§ 44.J USES OF DOMICIL. [CHAP. II. 
 
 mentary papers, continental jurists generally, applying the 
 maxim Locus regit actum, hold that a will is valid if executed 
 according to the formal requirements of the place of execu- 
 tion." But this rule is said to be merely facultative and not 
 imperative. Hence many hold that a will is valid if executed 
 according to the formal requirements either of the place of 
 execution or of the domicil of the testator. And this result 
 has now been reached in Great Britain as to the wills of 
 British subjects, by an act of Parliament (Lord Kingsdown's 
 act).^ But in England, prior to the passage of that act it 
 was settled, and in this country, in the States in which there 
 has been no positive enactment on the subject, it is now set- 
 tled, that a will of movables in order to be valid must be 
 executed in accordance with the formal requirements of the 
 law of the last domicil of the testator.'^ The same rule ap- 
 plies also to revocation. 
 
 But even though a will be made by a person under no 
 testamentary incapacity and be properly executed, its partic- 
 ular provisions will be held valid or invalid as they are in 
 accordance or not with the law of the testator's last domicil.^ 
 
 § 44. Id, Construction of WiUs. — The construction of a 
 will of movables is, generally speaking, to be made in ac- 
 cordance with the lex domicilii of the testator ; ^ but whether 
 it is the law of the domicil existing at the time of the execu- 
 tion of the will or of that existing at the time of the death of 
 
 6 Savigny, System, etc. § 381 (Gath- ■». Hunt, 23 N. Y. 394; Dupuy i). 
 
 rie's trans, pp. 322, 323) ; Bar, § 109 Wurtz, 53 N. Y. 556 ; Bremer v. Free- 
 
 (Gillespie's trans, p. 466 et seq.); Asser man, 10 Moore P. C. C. 306. 
 et Eivier, Droit Int. Priv. no. 63 ; » Savigny, System, etc. § 377 (Guth- 
 
 Phillimore, Int. L. no. 864; Whar- rie's trans, p. 283); Story, Confl. of 
 
 ton, Confl. of L. § 588. See also the L. § 479 ci ; Phillimore, Int. L. vol. 
 
 testimony of tlie French lawyers in iv. no. 892 ; Westlake, Priv. Int. L. 
 
 Bremer v. Freeman, 10 Moore P. C. C. 1st ed. no. 329 ; Jarman on Wills, pp. 
 
 306, infra, § 351, note 2. 2-5 ; Euohin v. Wylie, 10 H. L. Cas. 
 
 5 24 and 25 Vict. e. 114. 1 ; Whicker ». Hume, 7 id. 124. 
 
 ' Story, Confl. of L. §§ 465 et seq., i Story, Confl. of L. §§ 479 a, et seq., 
 
 473 ; Westlake, Priv. Int. L. 1st ed. 479/, et seq., 491 ; Phillimore, Int. L. 
 
 no. 324 ; Id. 2d ed. § 74 et seq. ; Foote, vol. iv. no. 890, 891 ; Savigny, System, 
 
 Priv. Int. L. p. 183 et seq.; Jarman on etc. § 377 (Guthrie's trans, p. 283) ; 
 
 Wills, vol. i. pp. 6, 7 ; Dicey, Dom. Westlake, Priv. Int. L. 1st ed. nos. 
 
 rule 68 et seq., pp. 294 et seq., 311 ; 329-331; Foote, Priv. Int. Jur. pp. 191- 
 
 Wharton, Confl. of L. § 585 ; Moultrie 221; Dicey, Dom. rule 70, pp. 306-308; 
 
 77 
 
§ 46.] THE LAW OF DOMICIL. [CHAP. 11. 
 
 the testator, which is to be looked to, is neither clear on 
 principle nor settled by the decided cases.^ 
 
 § 45. Probate and Administration.^ — The probate of wills 
 of movables and the grant of letters testamentary and of ad- 
 ministration belong primarily to the proper tribunal of the 
 last domicil of the deceased person. Under our jurispru- 
 dence, such letters propria vigore confer no authority upon 
 the executor or administrator beyond the territorial limits 
 of the State or country in which they are granted ; but in 
 order to bring suits in, or to administer and take possession 
 of, the movable property of the decedent in another State or 
 country, it is necessary to obtain express authority from the 
 proper tribunal of the latter State or country, either by a 
 fresh probate or grant of letters or by entering such security 
 as the local law may require. In granting ancillary probate 
 or letters, however, the local tribunal will give great respect 
 and weight to the acts of the domiciliary tribunal, and will as 
 far as possible select as administrator the same person as has 
 been intrusted with the administration by the latter. The 
 administration of the local personal assets will always be 
 carried on under the supervision and control of the court of 
 the situs; but when all the expenses of administration and 
 debts due creditors there are paid, the surplus will either be 
 remitted to the place of the decedent's domicil or distributed 
 by the court of the situs in accordance with the law of that 
 domicil. 
 
 There are numerous special points under this head which 
 have been decided and discussed. As it is impossible in this 
 sketch of the uses of domicil even to notice them all, the 
 reader will have to refer for them to the special treatises and 
 the decided cases. 
 
 § 46. Legacy and Inheritance Taxes. — Closely connected 
 
 Bar, § 110 (Gillespie's trans, p. 476) ; Confl. of L. eh. 13 ; Westlake, Priv. 
 
 Jarmau on Wills, vol. i. p. 6 ; Wharton, "tnt. L. 1st ed. ch. 10 ; Id. 2d ed. ch. 6 ; 
 
 Confl. of L. § 592 et seq. Foote, Priv. Int. Jur. pt. 2, ch. 7, p. 
 
 2 See Story, Confl. of L. § 479 g. 193 et seg.; Dicey, Dom. p. 813 et seq.; 
 
 1 Without stopping to cite authori- Wharton, Confl. of L. ch. 9, §§ 604 et 
 
 ties for each particular proposition con- aeq., 644 ; and the various text-hooks 
 
 tained in this section, it is suiBcient to upon Wills and Executors, 
 refer generally to the following : Story, 
 
 78 ■ 
 
§ 4t).] USES OP DOMICIL. [CHAP. 11. 
 
 with the foregoing, although it might properly also be no- 
 ticed under a succeeding head, is the use of domicil for the 
 purpose of determining the liability of the movable estate of 
 a decedent to legacy duties and taxes upon its transmission. 
 Probate and administration duties are of course determined 
 by the laws of the State in which probate or administration 
 is granted. They are the consideration paid for the grant 
 and for the protection afforded by the State and the use of its 
 legal machinery in the collection and administration of the 
 estate, and with them domicil has nothing to do.^ But with 
 respect to taxes upon the transmission of movable property, 
 two principles may be adopted ; namely, (a) the State in 
 which such property is found may tax it without regard to 
 the domicil of its deceased owner; or (6), applying the maxim 
 Mohilia sequuntur personam, the State or country within 
 whose territorial limits the deceased person was last domi- 
 ciled may lay a tax upon the whole of his movable property, 
 without regard to its location at the time of his death. The 
 first principle has been applied to some extent in this coun- 
 try, and the second has been applied both in Great Britain 
 and in this country. It is thus held in England that legacy 
 and succession duties are payable when, and only when, the 
 deceased person was last domiciled within the United King- 
 dom; and this principle is applied without regard either to 
 the location of the property or to the domicil of the legatees 
 or distributees.^ By the law of Pennsylvania,** collateral 
 inheritance tax is payable to the State (a) upon all property 
 within the State passing by will or intestate succession to 
 strangers or collateral relations ; and (6) upon all of the per- 
 sonal property (wherever situated and thus passing) of per- 
 sons domiciled within the State. Other States have enacted 
 similar laws, but this only need be referred to by way of 
 illustration. 
 
 1 Westlake, Priv. Int. L. 1st ed. no. 320 ; Id. 2d ed. § 106 eisej.; Foote, 
 no. 320 ; id. 2d ed. p. Hi ei seq. ; Priv. Int. Jur. p. 212 et seq. ; Dicey, 
 Wharton, Confl. of L. § 643 ; Foote, Dora, rule 73, p. 317 et seq. ; Hanson 
 Priv. Int. Jur. pp. 208-211; Jarman on Prob. Leg. and Sue. Duties, passim. 
 "Wills (Randolph & Talcott's Am. ed.), « Acts, 7 Apr. 1826, § 1 ; 10 Apr. 
 vol. i. p. 5, note. 1849, §§ 13 and 11 ; Mar. 1850, § 3, and 
 
 2 Westlake, Priv. Int. L, 1st ed. see 1 Purd. Dig. 11th ed. p. 259 ei 
 
§ 47.] THE LAW OP DOMICIL. [CHAP. II. 
 
 § 47. Jurisdiction. — We have already seen that in the Ro- 
 man law domicil furnished a very important, and indeed 
 practically the most important, ground of jurisdiction.^ A 
 person was subject to the laws of his domicil, and therefore 
 bound to obey, and subject to the jurisdiction of, its magis- 
 trates. This is a very important principle, valid now as then, 
 and cannot be kept too steadily in view in discussing ques- 
 tions of this kind. It received wide application on the Con- 
 tinent upon, and to some extent before, the decadence of the 
 feudal system, and is now extensively applied there for the 
 determination of questions of jurisdiction. Indeed, this is at 
 present one of the chief uses of domicil under the French law. 
 
 But under the English common law the sole basis of juris- 
 diction in personal actions was personal service upon the 
 defendant within the kingdom ; and this was applied alike to 
 subjects and to foreigners, whether domiciled or transiently 
 present ; the place where the action was tried resting partly 
 upon the will of the plaintiff and partly upon the distinction 
 between local and transitory actions peculiar to the common 
 law, and with which domicil had nothing whatever to do. In 
 this country the common law rules have generally been ap- 
 plied, and jurisdiction, so far as regards the different local 
 courts of the same State, has been made to depend mainly 
 upon the fact of service of process upon the defendant. This 
 is not universally true, however ; for in Louisiana ^ (following 
 the civil law rule) and in some other States, by statutory 
 enactments, jurisdiction is made to depend, to a certain ex- 
 tent at least, upon domicil.^ 
 
 But in the interstate questions of jurisdiction which are 
 constantly arising in this country by reason of the large num- 
 
 seq. See also Pennsylvania v. Ravenel, in some of tlie States. The statement 
 
 21 How. 103 ; Carpenter v. Pennsyl- in the text has reference, of course, to 
 
 vania, 17 id. 456 ; Commonwealth v. the ordinary common law actions and to 
 
 Smith, 5 Pa. St. 142; Short's Estate, the statutory forms of action modelled 
 
 16 id. 63 ; Hood's Estate, 21 id. 106. after them. In a large number of other 
 
 ^ flupra, § 9. judicial proceedings, however, such as 
 
 2 La. Code of Practice, art. 162 ; re- probate, and all matters relating to the 
 
 enacted in the Revised Laws of 1871. estates of decedents and oi-phans, di- 
 
 ^ This is particularly true with re- vorce, insolvency, etc., jurisdiction has 
 
 spect to the jurisdiction of justices of been conferred upon local tribunals upon 
 
 the peace and other inferior magistrates the basis of domioiL 
 
 80 
 
§ 47.] USES OP DOMICIL. [CHAP. II. 
 
 ber of quasi independent States of which our Union is com- 
 posed, domicil becomes of great importance. This is brought 
 into especial prominence in cases in which it is sought in one 
 State to enforce, or otherwise give validity to, the judgments 
 of the courts of other States. The Constitution of the United 
 States * declares that " full faith and credit shall be given in 
 each State to the public acts, records, and judicial proceed- 
 ings of every other State ; and the Congress may, by general 
 laws, prescribe the manner in which such acts, records, and 
 proceedings shall be proved, and the effect thereof." In pur- 
 suance of this authority, Congress (after providing for the 
 mode of authentication) has declared ** that " the said records 
 and judicial proceedings, authenticated as aforesaid, shall have 
 such faith and credit given to them in every court within the 
 United States, as they have by law or usage in the courts of 
 the State from which the said records are or shall be taken." 
 In applying these provisions, the question first of all nat- 
 urally arises. What is a " judicial proceeding " ? And this 
 is answered by the self-evident, as well as now thoroughly 
 settled, doctrine that there can be no judicial proceeding 
 without a court competent to act; that is to say (so far as 
 concerns personal actions), possessing jurisdiction both over 
 the parties and the subject-matter of the controversy. Other- 
 wise the proceeding is simply coram non judice, and does not 
 fall within the meaning of the phrase. Hence it is settled 
 by a long train of decisions, that when a judgment of a State 
 court is sought to be enforced, or otherwise relied upon, in a 
 court of another State or of the United States, it is entirely 
 competent, notwithstanding the constitutional and statutory 
 provisions above referred to, to inquire, even in contradiction 
 of the record, into the jurisdiction of the court pronouncing 
 the judgment, and if the requisite jurisdiction be found want- 
 ing, to treat the judgment as a nullity. Now, with respect to 
 jurisdiction as to parties, it is no doubt generally true that a 
 State may give to its courts jurisdiction over persons domi- 
 ciled within its territorial limits, by any sort of service, actual 
 or constructive, that it sees fit to adopt; and a judgmelit 
 
 < Art. 4, § 1. 
 
 6 Act, 26 May, 1790, § 1 ; Eev. Sts. § 905. 
 6 81 
 
§ 47.] THE LAW OF DOMICIL. [CHAP. II. 
 
 thereupon obtained would be considered valid and binding, 
 not only in that State, but in all of the other States of the 
 Union and in the Federal courts.^ But such is not the rule 
 with respect to persons domiciled elsewhere. For it is now 
 settled that in order to confer upon the courts of one State 
 jurisdiction in personal actions over persons domiciled in 
 other States, there must be (a) personal service within the 
 State of the court assuming to act, or (5) voluntary appear- 
 ance either in person or by attorney; and a judgment of 
 a State court without jurisdiction would be treated by the 
 courts of the other States and of the United States as a nul- 
 lity .'' And substantially the same doctrine has been applied 
 to judgment obtained in courts of foreign countries.^ 
 
 In England, the law with reference to the recognition and en- 
 forcement of the judgments of foreign tribunals is neither clear 
 nor well settled ; there is much apparent conflict in the decis- 
 ions, and no rules as definite as those which are recognized in 
 this country have been formulated. It is noteworthy, how- 
 ever, that the English courts themselves, under authority of an 
 act of Parliament, pronounce judgments upon extra-territorial 
 service against persons domiciled out of the United Kingdom, 
 which will not be recognized as binding in this country .^ 
 
 ' See Freeman on Judgments, § 570 Knowles v. The Gaslight & Coke Co., 
 
 and the cases there collected. 19 id. 58 ; Hall v. Lanning, 91 U. S. 
 
 ' Story on the Constitution of the 160 ; Pennoyer D. Neff, 95 id. 714. 
 United States, vol. ii. § 1313 ; Id. Coufl. » gee particularly BishofF v. "Weth- 
 of L. 8th ed. § 586, note (a) ; Whar- ered, 9 Wall. 812. 
 ton, Confl. of L. § 660, and anthori- » In Schihsby v. "Westenholz, L. R. 
 ties cited in notes ; Bigelow on Estop- 6 Q. B. 154, 159, Blackburn, J., in de- 
 pel, 1st ed. p. 223 et seq. ; Freeman on livering the opinion of the Court of 
 Judgments, § 559 et seq. ; Am. Lead. Queen's Bench, speaking of judgments 
 Cas. Tol. ii., notes to Mills i). Duryea obtained by such extra-territorial service, 
 and McEImoyle v. Cohen (where the said: " Should a foreigner be sued un- 
 subject is fully discussed), and the oases der the provisions of the statute referred 
 cited. The decided cases, both in the to, and then come to the courts of this 
 State and the United States courts, country and desire to be discharged, the 
 holding this doctrine, are so numerous only question which our courts could 
 that no attempt will be made here to entertain would be whether the acts of 
 give a list of them. It is sufficient to the British legislature, rightly con- 
 refer to a few of the later cases decided strued, gave us jurisdiction over this 
 by the Supreme Court of the United foreigner, for we must obey them. But 
 States ; viz.. Cooper v. Reynolds, 10 if, judgment being given against him in 
 Wall. 308 ; Galpin v. Page, 18 id. our courts, an action were brought upon 
 350 ; Thompson v. Whitman, id. 457 ; it in the courts of the United States 
 82 
 
§ 48.] USES OP DOMICIL. [CHAP. II. 
 
 § 48. Judicial Citizenship. — A few special phases of juris- 
 diction have already been referred to ; several others will now 
 be noticed. 
 
 The Constitution of the United States ' gives to the United 
 States Courts jurisdiction of " controversies . . . between 
 citizens of different States;" and Congress, in distributing 
 jurisdiction among the several Federal Courts, has assigned 
 to the Circuit Courts original jurisdiction of cases "where 
 . . . the suit is between a citizen of the State where it is 
 brought and a citizen of another State." ^ In applj'ing these 
 provisions it has been determined that a citizen of a partic- 
 ular State is one who is (1) a citizen of the United States, 
 native or naturalized, and (2) domiciled in such State.^ It 
 is true that in Shelton v. Tiffin,* McLean, J., in delivering 
 the opinion of the court, used language which seems to de- 
 mand a further condition ; namely, intention to become a citi- 
 zen of the particular State. But the current of authority 
 and opinion is entirely in favor of the rule as above stated. 
 Moreover, the language of the learned judge was in this re- 
 spect wholly obiter, inasmuch as no such intention was shown ; 
 yet a change of citizenship was held upon mere proof of a 
 change of domicil from one State to another. 
 
 Another instance of the dependence of jurisdiction upon 
 
 (where the law as to the enforcing of for- Courts, p. 118; Dillon, Eemoval of 
 
 eign judgments is the same as our own), Causes, p. 67 note; Barber v. Barber, 
 
 a further question would be open ; viz., 21 How. 682 ; Prentiss v. Barton, 
 
 not only whether the British legislature 1 Brock. 389; Catlin v. Gladding, 
 
 had given the English courts jurisdic- 4 Mas. 308; Briggs j). French, 2 Sumn. 
 
 tion over the defendant, but whether he 251 ; Butler v. Farnsworth, 4 Wash, 
 
 was under any obligation which the C. Ct. 101 ; Kemna v. Brockhaus, 10 
 
 American courts could recognize to sub- Biss. 128. Curtis says (Zoc. ci<.) : "It 
 
 mit to the jurisdiction thus created." is well settled that a citizen, judicially. 
 
 The question thus suggested has been is one who is a citizen of the United 
 
 passed upon in this country by the Su- States, either native or naturalized, and 
 
 preme Court of the United States in domiciled in a particular State. Any 
 
 Bisholf 1). Wethered, 9 Wall. 812, where person who is a native or naturalized 
 
 a judgment thus obtained in the Eng- citizen of the United States, and who 
 
 lish Court of Common Pleas was pro- has a domioil in Massachusetts, is a cit- 
 
 nounced to be a nullity. izen of Massachusetts, and so of the 
 
 1 Art. 3, § 2. other States." 
 
 2 Act 24 Sept. 1789, c. 20, § U ; * 6 How. 163, 185. He said : "On 
 Rev. St. § 629 ; Act 3 Mar. 1887, § 1. a change of domicil from one State to 
 
 ' Story on the Constitution, § 1693 ; another, citizenship may depend upon 
 Curtis, Jurisdiction of the United States the intention of the individual." 
 
 83 
 
§ 49.] THE LAW OF DOMICIL. [CHAP. II. 
 
 domicil under the United States laws may be mentioned. 
 Under the late bankruptcy law jurisdiction in bankruptcy was 
 given to the United States District Court in the district in 
 which the debtor had carried on business or resided for the 
 last six months, or the longest period thereof prior to the 
 time of the filing of his petition ; ^ and this residence has been 
 construed to be domicil in a case^ in which Lowell, Cir. J., 
 applied the most technical of all the principles of domicil; 
 namely, reverter of domicil of origin. ^ 
 
 § 49. AttachmentB against Non-Residents. — Closely akin to 
 the subject of jurisdiction is that of attachments against non- 
 residents. 
 
 Generally speaking, it may be said that the object of foreign 
 or non-resident attachments is to grasp the property of those 
 who cannot be reached in the ordinary way by personal ac- 
 tions. If, therefore, the position is correct (and how can it 
 be gainsaid?) that a State has the power to legislate with 
 binding force with respect to all persons who are domiciled 
 within its territorial limits, and thus to give its courts juris- 
 diction over such persons whether absent or present, it would 
 seem to follow that logically foreign attachment proceedings 
 should be applicable only to persons domiciled elsewhere. On 
 the other hand, it is true that a State has, at least within cer- 
 tain bounds, the power to legislate with binding force with 
 respect to all things found within its territorial limits, and 
 therefore can, if it deems proper, authorize the laying of at- 
 tachments upon any property there found, whether belonging 
 to its own citizens or to strangers. "Where, therefore, the legis- 
 lature has clearly expressed its intention to grant such author- 
 ity, theoretical views of jurisdiction have no application. But 
 it happens that in the statutes of almost all the States of the 
 Union respecting foreign attachments, the favorite legislative, 
 but very indefinite, term " residence " is in some form used. 
 This term, as we shall hereafter see, has been under many 
 statutes construed to mean domicil ; ^ and if the question were 
 an open one, there would seem to be, upon theory, plausible 
 grounds for so construing it when used in the attachment 
 
 s Act 2 Mar. 1867, o. 176, § 11 ; ^ In re "Walker, 1 Lowell, Dec. 237. 
 Rev. St8. § 5014. 1 Infra, § 75. 
 
 84 
 
§ 50.] USES OP DOMICIL. [CHAP. II. 
 
 laws, and practically a standard of at least reasonable defi- 
 niteness would thus be furnished. But a contrary practice 
 has prevailed in many, if indeed not in most, of the States, 
 and residence, when used in this connection, is generally held 
 to be something less than domicil, but approaching to and 
 resembling it in some important particulars.^ What such 
 residence is no one has yet succeeded in saying with any 
 approach to definiteness,^ and the cases upon this branch of 
 the law are in a most distressing state of confusion and con- 
 flict. It is true that the authorities upon the general subject 
 of domicil are frequently used in cases of attachment, and the 
 converse is also true ; but it is apparent that great caution 
 must be observed in using the cases of attachment as authori- 
 ties upon the general subject of domicil. Still they are fre- 
 quently useful as illustrating principles which are applicable 
 to both classes of cases. For such purpose they will be here- 
 after cited in the body of this treatise. 
 
 In some of the States, however, jurisdiction in foreign 
 attachment proceedings is apparently placed upon the basis 
 of domicil. This is notably so in Pennsylvania.* 
 
 § 50. Limitation of Actions. — There is another use some- 
 times made of domicil which may be considered as having 
 some bearing upon the relation of domicil to jurisdiction; 
 namely, in the construction of the provision contained in the 
 statutes of some of the States to the effect that the running 
 of the statute in favor of the defendant shall be suspended 
 for the time during which " he is absent from and resides out 
 of the State." And in some of the States, principally Massa- 
 
 ^ Drake on Attachments, § 57 e< seq. ; under the attachment laws is often so 
 
 Kneeland on Attachments, § 169 et seq. ; shadowy as to be incapable of definition 
 
 Waples on Attachments, p. 39. It is a or description. 
 
 singular fact, however, that the writers * The fntile attempts at a definition 
 
 on this subject, while they maintain of residence will be noticed hereafter 
 
 substantially the doctrine stated above (infra, § 74). The most conspicuous is 
 
 in the text, constantly apply the princi- that which describes the requisite awi- 
 
 ples of domicil to the determination of mus as "intention to remain perma- 
 
 residence under the attachment laws, nently at least for a time, " — a concep- 
 
 andconstantly cite cases of domicil (prop- tion, which it would require acumen of 
 
 erly so called) in support of their vari- no ordinary degree to grasp. 
 ous positions. The truth is, that the dis- * Reed's Appeal, 71 Pa. St. 378. 
 
 tinction between domicil and residence See also Pfoutz v. Comford, 36 id. 420. 
 
 85 
 
§50.J 
 
 THE LAW OF DOMICIL. 
 
 [CHAP. 11. 
 
 chusettSji such absence from and residence out of the State 
 has been dealt with as a question of domicil, the theory 
 
 I CoUester v. Hailey, 6 Gray, 517 ; 
 Langdou v. Doud, 6 Allen, 423 ; Hallet 
 V. Baasett, 100 Mass. 167 ; Mooar v. 
 Harvey, 128 Mass. 219. In Langdon 
 V. Doud, Bigelow, C. J., thus states the 
 grounds of this interpretation : "In 
 the case of Collester v. Hailey, 6 Gray, 
 517, it was decided that under Rev. 
 Sts. c. 120, § 9, which was re-enacted in 
 Gen. Sts. c. 155, § 9, the time of a debtor's 
 absence from the State without losing 
 his domicU is not to be excluded in 
 computing the period of limitation of 
 an action against him ; in other words, 
 that temporary absences, although ex- 
 tending over consecutive periods of sev- 
 eral months, but effecting no change in 
 the legal domicil of the debtor, do not 
 operate to extend the period of limita- 
 tion, but are to be included in reckon- 
 ing the time within which an action 
 may be commenced against him. It is 
 now urged by the learned counsel for 
 the plaintiff that this construction of 
 the exception to the Statute of Limita- 
 tions is too narrow, and that, by re- 
 stricting its operation to the single class 
 of cases in which the debtor has no 
 domicil or habitancy in the Common- 
 wealth, creditors may be deprived of all 
 effectual remedy to enforce their claims 
 against debtors who are actually absent 
 from the State for long-continued pe- 
 riods without abandoning or forfeiting 
 their domicil here. But if this be the 
 effect of the interpretation of the statute, 
 we do not see how it can be avoided. 
 Absence from the State of itself is 
 clearly not sufficient to suspend the 
 operation of the statute. The provision 
 is explicit that the time of a debtor's 
 absence shall be deducted from the time 
 limited for the commencement of the 
 action, only in case 'he is absent from 
 and resides out of the State. ' The conten- 
 tion, therefore, concerning the interpre- 
 tation of the statute resolves itself into 
 a question as to the true meaning of the 
 word 'residence.' Of this there is no 
 room for any serious doubt. It cer- 
 
 tainly does not signify a temporary so- 
 journ or occasional abode. In legal 
 phraseology it is synonymous with 
 ' habitancy ' or ' domicil.' This is the 
 sense in which it is used in statutes. 
 By Gen. Sts. c. 3, § 7, cL 7, it is 
 enacted that the word ' inhabitant ' may 
 be construed to mean 'resident.' And 
 by the Constitution of Massachusetts, 
 c. 1, § 2, art. 2, it is provided that the 
 word ' inhabitant ' shall be held to 
 signify that a person ' dwelleth or hath 
 his home ' in a particular place. Nor 
 are we able to see any good or sufBcient 
 reason for attributing to the language 
 of the statute, creating an exception to 
 the Statute of Limitations, any new or 
 unusual signification. A residence out of 
 the State, as applied to the subject-mat- 
 ter, may well mean the acquisition of a 
 domicil without its limits. So long as 
 a debtor has a last and usual place of 
 abode in the Commonwealth, that is, 
 while he retains his domicil or residence 
 here, the courts of the State have juris- 
 diction over him, and due service of 
 legal process can be made upon him. 
 A creditor can at any time commence 
 a suit to enforce a claim against a 
 debtor domiciled within the State. A 
 writ can be served by leaving a sum- 
 mons at his last and usual place ot 
 abode, and in case of his absence from 
 the State actual notice of the pendency 
 of the action can be given to him, so 
 that a valid and binding judgment can 
 be obtained. In such case, the creditor 
 has ample opportunity to prevent the 
 operation of the statute bar. But it 
 would be otherwise where the debtor had 
 no domicil within the State. No valid ser- 
 vice of process could be made upon him, 
 and the courts could have no jurisdiction 
 over his person. The true construction, 
 therefore, of this clause of the statute 
 would seem to be this : that whei-e 
 a defendant against whom a cause of 
 action accrues is a resident within the 
 State, and continues to reside therein, 
 his occasional and temporary absences, 
 
§51.J 
 
 USES OP DOMICIL. 
 
 [chap. II. 
 
 apparently being that so long as the defendant remains 
 domiciled in the State he remains subject to the jurisdiction 
 of its courts, and that therefore an action can be commenced 
 against him even in his absence. But the Massachusetts view 
 cannot be said to be by any means the prevailing one ; ^ in 
 the most of the States possessing similar statutory provisions, 
 residence out of the State not amounting to a change of 
 domicil being considered sufficient. But here, as iii the case 
 of foreign attachments, by reason of the extreme indefinite- 
 ness of the term " residence," when not measured and defined 
 by the rules applicable to domicil, great difficulty arises in 
 obtaining any standard of decision which will not be found 
 to be greatly varying and inconstant.^ 
 
 § 51. Taxation. — We have seen that under the Eoman law, 
 at least during the imperial period, the chief application of 
 domicil was to the determination of liability to municipal 
 burdens ; ^ and this application has survived to our day. It 
 has become in American jurisprudence a most useful principle 
 for the ascertainment of the liability of individuals to per- 
 
 however long continued, if not of such 
 a character as to change his domicil, 
 are not to be deducted in computing 
 the statutory term fixed for the limi- 
 tation of an action. ... It may be 
 added, that this construction of the 
 statute seems to be the only one which 
 will afford a fixed, permanent, and cer- 
 tain rule by which to ascertain whether 
 a particular case is included within or 
 excluded from the operation of the ex- 
 ception to the statute. If residence is 
 not held to signify domicil, it can have, 
 as applied to the subject-matter, no 
 definite and ascertained meaning ; but 
 it would be necessary to vary its inter- 
 pretation in each particular case, ac- 
 cording to the circumstances proved 
 concerning the length of the absence of 
 the debtor from the State, and the 
 objects for which he went away. There 
 would be no standard by which to de- 
 termine whether he could claim the 
 benefit of the statute bar, or was ex- 
 cluded from the operation of the excep- 
 tion." The learned editor of the eighth 
 
 edition of Story on the Conflict of 
 Laws (p. 60), doubts whether the word 
 "domicil" has been, in this connec- 
 tion, used in its technical sense. But 
 there seems to be little ground for this 
 doubt when we look at the language of 
 the decisions, and when we consider 
 further that this construction is a part 
 of the consistent policy of the Massa- 
 chusetts courts to interpret "resi- 
 dence," "inhabitancy," "dwelling- 
 place," and like words, when used in 
 statutes, in the technical sense of domi- 
 cil. Moreover, in no State of the Union 
 has the subject of domicil been so fre- 
 quently, so ably, or so consistently 
 treated as in the courts of that State ; 
 and it seems extremely improbable that 
 the word would be used there, without 
 qualification, in any but its technical 
 sense. 
 
 2 See Story, Confl. of L. 8th ed. 
 § 49, note (c), pp. 58-60. 
 
 ' See Bigelow, C. J., in Langdon v. 
 Doud, supra, 
 
 1 Supra, § 8. 
 
 87 
 
§ 51.J THE LAW OP DOMICIL. [CHAP. II. 
 
 sonal taxes and taxes upon their personal property. Taxes 
 upon immovable property can be assessed only at the place 
 of its location. But movables, upon the principle of the 
 maxim Molilia sequuntur personam, are taxable at the place 
 of the domicil of their owner,^ although there is a distinction 
 in this respect between tangible and intangible personal prop- 
 erty. The former may be taxed either by the State in which 
 the owner has his domicil,^ or by that in which they have 
 their actual situs,^ while the latter, including debts of all 
 kinds whether or not secured by mortgage upon real estate 
 situate in another State, is taxable only at the domicil of the 
 owner.5 As to purely personal taxes, such as poll-taxes, it ig 
 settled that they can be assessed only where the person is 
 domiciled. 
 
 The above principles have been stated with special refer- 
 ence to the interstate law of taxation ; but they are equally 
 applicable to inter-municipal conflicts unless modified by stat- 
 ute. A State having the power to tax a person may fix the 
 particular place within its limits at which he shall be taxed 
 by whatever standard it chooses to adopt. This has been 
 done in most of the States by providing that persons shall be 
 taxed in the municipal divisions of which they are " residents " 
 or " inhabitants," and these words have with great uniformity 
 been construed to have reference to domicil in its technical 
 sense. An attempt was made by the Supreme Court of 
 
 2 Cooley on Taxation, pp. 14, 15, that it should be there taxed. It is a 
 
 43, 269, 270 ; Desty on Taxation, vol. i. question, therefore, of legislative iutent, 
 
 § 67 ; Burroughs on Taxation, § 7 ; and not of legislative power. 
 Wharton, Confl. of L. § 80. * Cooley on Taxation, pp. 15, 43, 
 
 8 Cooley, op. Ht. pp. 43, 269, 270 ; 270 ; Desty on Taxation, vol. i. p. 323 
 
 Desty, ubi svpra. This, however, is et seg. ; Bun-oughs on Taxation, §§ 40, 
 
 denied by some. See Wharton, Confl. 50 ; Wharton, Confl. of L. § 80, p. 124, 
 
 of L. § 80, p. 124, note 2 ; Burroughs note 2. 
 
 on Taxation, §§ 40, 50. It is to he ^ Cooley on Taxation, pp. 15, 270, 
 
 noted, however, that most of the cases note ; Desty on Taxation, vol. i. § 67, 
 
 cited for this position, that tangible per- p. 326 ; Burroughs on Taxation, §§ 41, 
 
 sonal property is not taxable at the 42 ; Wharton, Confl. of L. § 80 ; State 
 
 domicil of the owner, turn upon the Tax on Foreign-held Bonds, 15 Wall, 
 
 construction of statutory provisions, and 300 ; Kirtland v. Hotchkiss, 100 U. S. 
 
 simply hold that under this or that 491. See generally, upon the subject 
 
 statute such property is not taxable at of the place where property shonld be 
 
 the owner's domicil, because the legis- taxed, the valuable note to City of New 
 
 lature does not appear to have intended Albany v. Meekin, 56 Am. Dee. 622. 
 88 
 
§ 53.] USES OP DOMICIL. [CHAP. 11. 
 
 Massachusetts in Briggs v. Rochester ^ to ignore this generally- 
 received construction; but that case was subsequently over- 
 ruled by the same court in Borland v. Boston/ where an 
 elaborate opinion was rendered, in which the subject was 
 reviewed at great length, and the result reached that be- 
 yond doubt " the word ' inhabitant ' as used in [the Massa- 
 chusetts] statutes, • when referring to liability to taxation, 
 by an overwhelming preponderance of authority means ' one 
 domiciled.' " 
 
 This branch of the law has furnished a large number of 
 cases in which the subject of domicil has been discussed and 
 applied. 
 
 § 52. Liability to other Public Burdens. — Domicil has been 
 used in this country as the test of liability to other public 
 burdens, among which two may be mentioned ; namely, (1) 
 liability to militia service,^ and (2) liability to jury service.^ 
 The latter has, however, been usually discussed from the 
 opposite standpoint, namely, that of eligibility. 
 
 § 53. Right to Vote. — In this country the qualifications for 
 the exercise of the electoral franchise are fixed by the con- 
 stitutions and laws of the several States. These qualifica- 
 tions vary somewhat in different States, although they are in 
 most respects substantially the same everywhere. 
 
 In most of the States citizenship of the United States is 
 required, although in a number it is deemed sufficient if the 
 person whose right is in question, being a foreigner by birth, 
 has declared his intention of becoming a citizen of the United 
 States. But the laws of all the States unite in requiring 
 residence for a fixed period (which varies in different States), 
 both in the State and in the particular election district; 
 and " residence," as so used, has, wherever the question has 
 
 8 16 Gray, 337. 452 ; In re Toner, id. 454 ; Ex 
 
 ■J 132 Mass. 89. Bluraer, 27 Tex. 735; Ex parte liRscher, 
 
 1 Hill V. Fuller, 14 Me. 121 ; Shat- cited id. 746. 
 tuck V. Maynard, 3 N. H. 123 ; Hart « United States v. Thorp, 2 Bond, 
 
 V. Liudsey, 17 id. 235 ; Common- 340 ; State v. Groome, 10 Iowa, 308 ; 
 
 wealth V. Walker, 4 Mass. 556. Domi- Graham 'V. Trimmer, 6 Kans. 230 ; Bea- 
 
 cil was used as the test of military eon v. State, 34 Miss. 602 ; People w. 
 
 service in the armies of the late Con- Peralta, 4 Cal. 175 ; Clarke v. The Ter- 
 
 federate States. In re Fight, 39 Ala. ritory, 1 Wash. Ter. 82. 
 
 89 
 
§ 55.] THE LAW OF DOMICIL. [CHAP. II. 
 
 arisen, been uniformly construed to mean " legal residence," 
 or domicil.^ 
 
 § 54. EUgibiiity to Office. — Domicil is also frequently used 
 in this country for the determination of other public rights 
 of the citizen, one of which may be particularly mentioned ; 
 namely, eligibility to office, where such eligibility depends 
 upon " residence." ^ 
 
 § 55. Settlement under the Poor-Laws. — Settlement or right 
 to support under the poor-laws depends, in England and in the 
 various States of this country, upon various statutory provi- 
 sions, the principal grounds (which are recognized in most 
 of the poor-law systems) of the right to such support in or 
 by a particular poor-district being, ownership of real estate, 
 payment of taxes, and residence for a fixed period in such 
 district. In England residence under the poor-laws has never 
 been considered as in any way connected with the subject of 
 domicil. This is no doubt due to the fact that the principles 
 of pauper settlements were substantially fixed before the in- 
 troduction into English jurisprudence of either the term "dom- 
 icil" or the definite notion signified by that term. In this 
 countiy various statutory words, such as " dwelling-place," 
 " home," " inhabitancy," and " residence," have been used to fix 
 the place of settlement ; and these words in different States have 
 been differently construed. In some States they have been held 
 to mean, or treated as meaning, domicil ; while in others a con- 
 trary view has prevailed. It is not proposed here to examine 
 the decisions in the various States upon this subject ; it is 
 sufficient to notice only those of Maine and Massachusetts as 
 representing the opposite tendencies. In the earlier cases ^ 
 
 1 Putnam w. Johnson, 10 Mass. 488 ; i Commonwealth o. Kelleher, 115 
 
 Blanohard v. Steams, 5 Met. 298 ; Mass. 103 ; Commonwealth v. Jones, 12 
 
 Opinion of the Judges, id. 587 ; Holmes Pa. St. 365; State v. Giizzaid, 89 
 
 V. Greene, 7 Gray, 299 ; Crawford i). N. C. 115 ; Yonkey v. State, 27 Ind. 
 
 Wilson, 4 Barb. 504 ; Fry's Election 236. 
 
 Case, 71 Pa. St. 302 ; McDaniel's Case, i Parsonfield v. Perkins, 2 Greenl. 
 
 3 Pa. L. J. 310 ; State v. Frest, 4 Harr. 411 ; Boothbay v. Wiscassett, 3 id. 
 
 (Del.) 558 ; Roberts ». Cannon, 4 Dev. 354 ; Parsonfield v. Kennebunkport, 4 
 
 & B. 256 ; State v. Hallett, 8 Ala. 159 ; id. 47 ; Hallowell v. Saoo, 5 id. 143 ; 
 
 State V. Judge, 13 id. 805 | Dale v. Ir- Richmond v. Vassalborough, id. 396 ; 
 
 win, 78 111. 160 ; Vanderpoel v. O'Han- Waterborough v. Newiield, 8 id. 203 ; 
 
 Ion, 53 Iowa, 246 ; Cooley, Const. Lim. Greene v. Windham, 13 Me. 225, and 
 
 p. 600. others. 
 
 90 
 
§ 56.] USES OP DOMICIL. [CHAP. II. 
 
 decided by the Supreme Court of the former State, settlement 
 was apparently put squarely upon the basis of domicil ; but 
 these cases have long since been overruled, and the position 
 established by numerous decisions ^ that " residence," " dwell- 
 ing-place," and " home," as used in the pauper laws of that 
 State, are not equivalent to, but mean something less than 
 " domicil," the principal difference noted, however, being that 
 while a person cannot be without a domicil somewhere he 
 can be absolutely without a residence, dwelling-place, or home. 
 On the other hand, the Massachusetts courts have with great 
 consistency construed " inhabitancy," " residence," etc., in the 
 statutes relating to pauper settlements in the same sense as 
 that in which they have construed the same and similar words 
 in statutes relating to other subjects, and have with great 
 uniformity held them to mean " domicil " in its technical 
 sense.^ 
 
 No apparent difficulty has arisen from the application of 
 the Massachusetts doctrine, and it has the merit of furnishing 
 a more certain and more generally understood standard of 
 decision than any which can result from its rejection. In the 
 present state of the decisions, however, it is unsafe to rely 
 too far upon settlement cases as decisive of principles relating 
 to even municipal domicil without at least inquiring into the 
 general tenor of the decisions upon this branch of the law 
 in the particular State in which they have been decided. But 
 even when settlement cases cannot be relied upon strictly as 
 authorities, they often furnish illustrations of principles which 
 are equally applicable to domicil, and particularly to munici- 
 pal domicil. For this purpose they will mainly be used in 
 this treatise. 
 
 § 56. Homestead and other Exemptions. — One other use of 
 domicil may be mentioned ; namely, for the determination of 
 the right of persons to homestead and other exemptions, out 
 of their own property or that of deceased persons. All the 
 
 2 Exeter v. Brighton, 15 Me. 58 ; ' Although not the earliest, the lead- 
 Jefferson V. Washington, 19 id. 293 ; ing case is Abington v. North Bridge- 
 Warren V. Thomaston, 43 id. 406; water, 23 Pick. 170. See remarks of 
 Littlefield v. Brooks, 50 id. 475, and Shaw, C. J., infra, § 75, note 2. 
 others. 
 
 91 
 
§56.] 
 
 THE LAW OP DOMICIL. 
 
 [chap. II. 
 
 States of the Union have passed laws allowing such exemp- 
 tions, — usually to their own citizens only ; and in determining 
 who are entitled to the statutory exemptions the principle of 
 domicil has been extensively applied.^ 
 
 1 Wharton, Coufl. of L. § 189 ; 
 Lindsay v. Murphy, 76 Va. 42S ; Har- 
 kins V. Arnold, 46 Ga. 656 ; Talmadge's 
 Adra'r v. Talmadge, 66 Ala. 199 ; Kel- 
 ley's Ex'r v. Garrett's Ex'rs, 67 id. 
 304 ; Johnson v. Turner, 29 Ark. 280 ; 
 
 92 
 
 EepuhlicD. Young, Dallam, 464 ; Heirs 
 of HoUimau v. Peebles, 1 Tex. 673 ; 
 Eussell V. Randolph, 11 id. 460 ; Shep- 
 herd V. Cassiday, 20 id. 24 ; Gouhenant 
 V. Cockerell, id. 96 ; Cross v. Everts, 28 
 id. 523 ; Lacey v. Clements, 36 id. 661. 
 
§57.] 
 
 DEFINITIONS. 
 
 [chap. III. 
 
 CHAPTER III. 
 
 DEFINITIONS. 
 
 § 57. Difficulty of Defining Domioil. — The difficulty, if not 
 impossibility, of arriving at an entirely satisfactory definition 
 of domicil has been frequently commented upon.^ Lord Al- 
 
 ' In addition to the cases mentioned 
 in the text, Attorney-General v. Eowe, 
 1 Hurl. & Colt. 31, per Bramwell, B.; 
 Doucet V. Geoghegan, L. E. 9 Ch. D. 
 441, per Jessel, M. R.; White v. Brown, 
 1 Wall. Jr. C. Ct. 217, per Grier, J.; 
 Hallet V. Bassett, 100 Mass. 167, per 
 Colt, J.; Matter of Hawley, 1 Daly 
 (N. Y. Common Pleas), 531 ; In re 
 Catharine Roberts' Will, 8 Paige, Ch. 
 519, per Walworth, Ch.; White v. 
 White, 3 Head, 404, per Cooper, J.; 
 Ex parte Blumer, 27 Tex. 735. 
 
 Lord Chelmsford says, in Pitt v. Pitt, 
 4 Macq. 627 : " A disputed question of 
 domicil is always one of difficulty, on 
 account of the impossibility of arriving 
 at a satisfactory definition which will 
 meet eveiy case that can arise." " No 
 exact definition can be given of domi- 
 cil ; it depends upon no one fact or 
 combination of circumstances, but from 
 the whole taken together it must be de- 
 termined in each particular case." Per 
 Shaw, 0. J., in Thomdike v. Boston, 
 1 Mete. 242, 245. Dr. Radcliffe, in 
 Burton if. Fisher, Milward (Ir. Eccl. ), 
 183, declares that no accurate definition 
 of domicil can be found or hoped for. 
 There are also many expressions in the 
 books to the effect that at least no sat- 
 isfactory definition has been framed. 
 "It has been observed over and over 
 again that no one has succeeded in giv- 
 ing a definition of domicil that will, in 
 the first place, comport with all the de- 
 cisions that have been come to, or will, 
 
 in the next place, assist in relieving the 
 court from the difficulty of defining it." 
 Drevon v. Drevon, 34 L. J. Ch. 129, 
 per Kindersley, V. C. The same judge 
 says in another case : " With respect to 
 these questions of domicil there is no 
 precise definition or formula which can 
 be laid down by the application of 
 which to the facts of the case it is pos- 
 sible at once to say where the domicil 
 was." Cockrell v. Cockrell, 2 Jur. 
 ''^ s). 727. Says Hatherley, Lord Ch., 
 ill Udny v. Udny, L. E. 1 So. & Div. 
 App. 441, 449 : "I shall not add to the 
 many ineffectual attempts to define 
 domicil." And an American judge 
 declares that " the books are full of 
 unsatisfactory definitions as well as 
 confused and conflicting decisions in 
 relation to those terms " (i. e., domicil 
 and residence). Love v. Cherry, 24 
 Iowa, 204, 208, per Cole, J. But the 
 great source of difficulty lies, not, as 
 was intimated by Bramwell, B., in 
 Attorney-General v. Eowe, supi-a, in 
 the vagueness of the meaning of the 
 term "domicil," but in the fact that the 
 attempted or desiderated definition has 
 generally been some such formula as 
 that referred to by Kindersley, V. C, 
 Sfupra. Upon this point the language of 
 Du Pont, J., contains a great deal of truth' 
 as well as rhetoric. He says, speak- 
 ing particularly of what he and some 
 others call " domicil of succession : " 
 " In the elementary works, as well as in 
 the reports of adjudicated cases, much 
 
 93 
 
§57.] 
 
 THE LAW OP DOMICIL. 
 
 [chap. III. 
 
 vanley, in Somerville v. Somerville,^ praised the wisdom of 
 Bynkershoek in not hazarding a definition ; and Dr. Lushing- 
 
 difficulty has been encountered in circum- 
 scribing within the limits of a definition 
 this term, and it has even been said that 
 it is a terra which is not susceptible of 
 a definition. In the correctness of this 
 latter assertion we cannot concur, for it 
 would be a reproach to our language to 
 suppose that its poverty is so extreme 
 that no apt and appropriate words could 
 be found in its extensive vocabulary 
 sufiiciently comprehensive to compass 
 the meaning of a legal term of every- 
 day use. And it would be a greater 
 libel on the noble science of law to 
 chai'ge it with 'the use of a term inca- 
 pable of definition, and consequently 
 unintelligible to the legal apprehension. 
 The real difficulty encountered by writ- 
 ers upon this subject lies not at all in 
 being unable to assign a definite mean- 
 ing to the term itself, but the failure to 
 do so has arisen from the vain attempt 
 to circumscribe within certain prescribed 
 limits, and to enumerate the particular 
 acts which shall be taken to prove the 
 establishment of a domicil of succes- 
 sion. It must readily occur that no 
 compass of language can ever fully com- 
 prehend the variety of acts which shall 
 in .any given case tend to prove the es- 
 tablishment of domicil ; for these acts 
 will ever be as various as are the occu- 
 pations of men or the emotions of the 
 mind." Smith v. Groom, 7 Fla. 81, 150. 
 Westlake, in the first edition of his 
 work on Private International Law, 
 says (ch. 3, no. 30, p. 31): "The mod- 
 ern attempts at defining domicil have 
 not aimed at elucidating the meaning 
 of the word, but at comprising in a 
 formula all the conditions which the 
 law demands for its recognition of the 
 fact. . . . No such attempt, however, 
 can be perfectly successful, because dom- 
 icil is not inferred solely from the cir- 
 cumstances which surround the person 
 at the moment, but, as we shall see, the 
 
 law presumes a domicil of origin, and 
 is occupied with the changes to which 
 that, or any other subsequently ac- 
 quired, is subject. The nature of the 
 case would admit of our summing up in 
 a formula the conditions under which 
 a change of domicil will be inferred, but 
 the resulting proposition would be either 
 too cumbrous or too defective for utility . " 
 The same writer, however, considers that 
 "no true definition of domicil is possi- 
 ble," inasmuch as residence (of which 
 he says domicil "is the legal concep- 
 tion") is itself "a simple conception, 
 which may serve to fix others, but 
 which cannot be made plainer itself by 
 any amount of verbiage." Id. p. 30. 
 
 Although at the risk of appearing 
 to extend this note unduly, the writer 
 cannot refrain from quoting the admira- 
 ble remarks of Dicey upon this point. 
 After quoting expressions by several 
 English judges concerning the difficulty 
 of arriving at a satisfactory definition, 
 he says (p. 335 ct seg.) : " The opinion 
 which these dicta embody is, however, 
 in spite of the eminence of its sup- 
 porters, one in which it is on logical 
 grounds hard to acquiesce. To define a 
 word is simply to explain its meaning, 
 or, where the term is a complex one, to 
 resolve it into the notions of which it 
 consists. The two possible obstacles to 
 definition would seem on logical grounds 
 to be, either that a term is of so com- 
 plex a nature that language does not 
 avail to unfold its meaning, or, in other 
 words, that the term is in the strict 
 sense incomprehensible, or that it con- 
 notes an idea so simple as not to admit 
 of further analysis. Neither of these ob- 
 stacles can, it is conceived, hinder the 
 definition of the term ' domicil.' It is 
 certainly not the name of any notion 
 so complex that it cannot be rendered 
 into language. It is certainly, again, 
 not the name for an idea so simple as 
 
 2 6 Yes. Jr. 750. 
 
 94 
 
57.] 
 
 DEFINITIONS. 
 
 [chap. III. 
 
 ton, in Maltass v. Maltass,-^ speaking of the various attempts 
 of jurists in this direction, considered himself justified in 
 
 not to admit of further analysis. The 
 expression for example, 'permanent 
 home,' which is often used as its pop- 
 ular equivalent, is clearly a complex 
 one, which needs and may receive fur- 
 ther explanation. 
 
 "Nor are the reasons suggested for 
 holding that domicil is indefinable by 
 any means conclusive. The objection 
 often made in various forms, that any 
 definition must terminate in the ambi- 
 gnity of the word ' settled ' or its equiva- 
 lent, may be a proof that the process of 
 definition has to be pushed farther than 
 it has hitherto been carried, but does 
 not show either that definitions already 
 made are, as far as they go, inaccurate, 
 or still less that the attainment of a 
 complete definition is impossible. The 
 perfectly sound remark, again, that no 
 formula can be laid down by the applica- 
 tion of which to the facts of the case it is 
 possible at once to say where the domicil 
 may be, points not to any necessary de- 
 fect in the definition of the term, but to 
 the narrow limits within which defini- 
 tion, however perfect, can be of practi- 
 cal utility. Any term the meaning of 
 which involves a reference to ' habit ' 
 or to ' intention ' will always be difficult 
 of application. Ko definition can ever 
 remove the difficulty of determining in 
 a particular case what number of acts 
 make a course of action habitual, or 
 what is the evidence from which we may 
 legitimately infer the existence of inten- 
 tion. Difficulties similar in kind, if not 
 in degree, to those which attend the ap- 
 plication to the facts of the case of any 
 definition of domicil, arise whenever 
 questions as to 'possession' or as to 
 ' intention ' require to be answered by 
 the courts. The peculiar difficulty of 
 dealing with the term ' domicil ' arises, 
 it is apprehended, from its being a term 
 
 the meaning of which involves a refer- 
 ence both to habit and to intention, 
 while the intention, viz., the animus 
 manendi, is one of a very indefinite 
 character, and as to the existence of 
 which the courts often have to decide 
 without possessing the data for a reason- 
 able decision. 
 
 "The admission, in fact, that domi- 
 cil depends on a relation between ' resi- 
 dence ' and ' the intention of residence ' 
 or, to use the words of Lord Westbury, 
 that ' domicil of choice is a conclusion 
 or inference which the law derives from 
 the fact of a man fixing voluntarily his 
 sole or chief residence in a particular 
 place, with an intention of continuing 
 to reside there for an unlimited time ' 
 (Udiiy V. Udny, L. E. 1 Sc. App. 441, 
 458, and compare Bell v. Kennedy, ibid. 
 307, 319 ; Cockrell v. Cockrell, 25 L. J. 
 Ch. 730-732 ; Lyall v. Paton, ibid. 
 739, 746) is, it is conceived, a virtual 
 concession that a definition of domicil 
 is, at any rate, possible. When his 
 lordship adds that ' this is a description 
 of the circumstances which create or 
 constitute domicil, it is not a definition 
 of the term,' there is a difficulty in fol- 
 lowing his reasoning ; for such a descrip- 
 tion, if accurate, is an explanation or, 
 in other words, a definition of what is 
 meant by domicil. It is, at any rate, 
 the only kind of definition which a 
 lawyer need care to frame. 
 
 " The prevalent opinion that no at- 
 tempt to define domicil has been crowned 
 with success deserves careful considera- 
 tion. For if the opinion be well founded, 
 the conclusion naturally suggests itself 
 that where writers of great eminence 
 have failed, success is practically un- 
 attainable, while the mere existence of 
 the opinion in question appears, at first 
 sight, to be something like a guarantee 
 
 « 1 Eob. Eccl. 67, 74. The lan- 
 guage of Hertius was originally applied 
 to the difficulty experienced by the 
 civilians in distinguishing between stat- 
 
 utes, real, personal, and mixed. 1 
 Hertii Opera, De Collis. Legum, s. 4, 
 n. 3, p. 120, ed. 1716. 
 
 95 
 
§57.] 
 
 THE LAW OF DOMICIL. 
 
 [chap. III. 
 
 applying the remarkable language of Hei'tius : " Verum in iis 
 definiendis mirum est quam sudant doctores." Lord Chelms- 
 
 that it rests on sound foundations. It 
 is worth while, therefore, to consider 
 what are the grounds on which the be- 
 lief that the existing definitions of dom^ 
 icil are unsatisfactory is based, and 
 whether it be possible to find an expla- 
 nation for the existence of this belief, 
 which, without impugning the sagacity 
 of those by whom it has been entertained, 
 leaves its truth at least open to doubt. 
 
 " English tribunals have tested every 
 definition of domicil by what undoubt- 
 edly is, subject to one condition, the true 
 criterion, at any rate in an English 
 court, of the soundness of such a defini- 
 tion, viz., whether it includes all the 
 cases in which it has been judicially 
 decided that a person has, and excludes 
 all the cases in which it has been judi- 
 cially decided that a person has not, a 
 domicil in a particular country; and it 
 is because judges have found that no 
 received definition has stood this test, 
 that they have pronounced every exist- 
 ing definition defective, and have all 
 but despaired of the possibility of fram- 
 ing a sound definition. The condition, 
 however, of the validity of this criterion 
 is that the cases by which a definition 
 is tested should be really inconsistent 
 with the definition, and that the cases 
 themselves should be decided consist- 
 ently with generally admitted principles. 
 For if a definition is really applicable 
 to cases which at first sight seem incon- 
 sistent with it, or if the decisions by 
 which it is tested are themselves in 
 principle open to doubt, the difficulty 
 which arises in applying the definition 
 is in reality a strong testimony to its 
 essential soundness. The matter, there- 
 fore, for consideration is whether the 
 test applied to the definitions of domicil 
 has fulfilled the condition on which its 
 validity depends. 
 
 "Definitions of domicil have made 
 shipwreck on three distinct sets of cases 
 which may, for the sake of brevity, be 
 described as 'Anglo-Indian Cases,' 'Al- 
 legiance Cases,' and ' Health Cases.' 
 
 96 
 
 "(I.) Anglo-Indian Cases. — A 
 series of decisions beginning, in 1790, 
 with Bruce v. Bruce (2 B. & P. 229), 
 and ending, in 1864, with Jopp v. 
 Wood (4 De G. J. & S. 616), decided 
 that an officer in the service of the 
 company was domiciled in India. It 
 was as clear, in ninety-nine instances 
 out of a hundred, as such a thing could 
 be, that a servant of the Company did 
 not intend to make India his permanent 
 home (Allardice u. Onslow, 33 L. J. 
 Ch. 434, 436, judgment of Kindersley, 
 V. C). It was, therefore, in the strict- 
 est sense impossible that any definition 
 which made the existence of domicil de- 
 pend on the animus manendi should 
 justify the decisions as to Anglo-Indian 
 domicil. No accuracy of terms or analy- 
 sis of the meaning of the word could by 
 any possibility achieve this result. As 
 long, therefore, as the Anglo-Indian 
 cases were held to be correctly decided, 
 English judges were inevitably driven to 
 the conclusion that every received defi- 
 nition of domicil, such, for example, as 
 Story's, was incorrect. The courts, how- 
 ever, have now pronounced the Anglo- 
 Indian cases anomalous, or, in other 
 words, have held that these cases were 
 in principle wrongly decided, though 
 their effect could now be got rid of only 
 by legislative action (Jopp v. Wood, 
 34 L. J. Ch. 212, 4 De G. J. & S. 
 616 ; Drevon v. Drevon, 34 L. J. Ch. 
 129, 134). These cases, therefore, do 
 not fulfil the condition necessary to 
 make them a test of a definition of 
 domicil. 
 
 " (II. ) Allegiance Cases. — The doc- 
 trine was at one time laid down (Moor- 
 house V. Lord, 10 H. L. C. 272, 32 
 L. J. Ch. 29.'); Whicker v. Hume, 7 H. 
 L. C. 124, 23 L. J. Ch. 396), that a 
 change of domicil involves something 
 like a change of allegiance, and that, for 
 instance, an Englishman, in order to ao- 
 <iuire a French domicil, must, at any 
 rate as far as in him lies, endeavor to 
 become a French citizen. This doctrine 
 
§57.] 
 
 DEFINITIONS. 
 
 [chap. III. 
 
 ford, speaking, as late as 1863, in the case of Moorhouse v. 
 Lord,* says : " The difficulty of getting a satisfactory defini- 
 
 cause they could not cover these cases, 
 were naturally thought incorrect and 
 unsatisfactory. 
 
 " A survey, in short, of the attempts 
 which have heen made to define domicil, 
 and of the criticisms upon such at- 
 tempts, leads to results which may be 
 summed up as follows : — 
 
 " Mrst. Domicil, heing a complex 
 term, must from the nature of things be 
 capable of definition. In other words, 
 it is a term which has a meaning, and 
 that meaning can be explained by ana- 
 lyzing it into its elements. 
 
 " Secondly. All the best definitions 
 agree in making the elements of domicil 
 ' residence ' and ' animus itianenM,' 
 
 " Thirdly. Several of these defini- 
 tions — such, for example, as Story's, 
 Phillimore's, or Vice-Chancellor Kin- 
 dersley's — have succeeded in giving an 
 explanation of the meaning of domicil, 
 which, even if not expressed in the 
 most precise language, is substantially 
 accurate. 
 
 "Fourthly. The reason why Eng- 
 lish courts have been inclined to hold 
 that no definition of domicil is satisfac- 
 tory is that they have found it impos- 
 sible to reconcile any definition with the 
 three sets of judicial decisions or dicta. 
 When, however, these sets are examined, 
 it is found that two of them consist of 
 cases embodying views of domicil now 
 admitted to be erroneous, while the third 
 set can be reconciled with all the best 
 definitions of domicil. The great diffi- 
 culty, in short, which English judges 
 have experienced in discovering a satis- 
 factory definition, arises from the fact 
 that when of recent years the courts have 
 been called upon to determine questions 
 of domicil, they have been hampered by 
 the almost insuperable difficulty of rec- 
 onciling a generally sound theory with 
 decisions or dicta delivered at a period 
 when the whole subject of the conflict 
 of laws was much less perfectly under- 
 stood than at present." 
 
 4 10 H. L. Gas. 272, 284. 
 7 97 
 
 was strictly inconsistent with the the- 
 ory, on which the received definitions of 
 domicil are based, that a domicil is 
 merely a permanent home. As long, 
 therefore, as this doctrine was main- 
 tained, it was impossible for English 
 judges to treat as satisfactory any of the 
 current definitions of domicil. The at- 
 tempt, however, to identify change of 
 domicil with change of allegiance has 
 now heen pronounced on the highest 
 authority a failure (XJdny v. Udny, L. R. 
 1 So. App. 441 ; Douglas ». Douglas, 
 L. E. 12 Eq. 617). The allegiance 
 cases, therefore, are not entitled to 
 weight, and are no criterion of the cor- 
 rectness of a definition. 
 
 "(III.) Health Cases. — Dicta, 
 though not decisions, may be cited as 
 showing that a change of residence made 
 by an invalid for the sake of his health 
 cannot effect a change of domicil. This 
 doctrine, if adopted without consider- 
 able limitations, makes domicil depend 
 upon the motive, and not upon the in- 
 tention, with which a person changes 
 his residence. It is, therefore, inconsis- 
 tent with, and throws doubts upon, the 
 correctness of any definition of domioU 
 depending upon the combination of resi- 
 dence and animv^. ma/nendi. The doc- 
 trine, however, is now shown by the one 
 decided case on this subject (Hoskins v. 
 Matthews, 25 L. J. Ch. 689, 8 De G. 
 M. & G. 13) to be either unfounded or 
 else to be explainable in a manner per- 
 fectly consistent with the ordinary defi- 
 nitions of domicil. 
 
 "A result, therefor*, of the exami- 
 nation of the three sets of cases, by which 
 definitions of domicil have been tested 
 and found wanting, is, that no one of 
 these sets fulfils the conditions necessary 
 to make it the criterion of a definition, 
 and that the difficulty which has been 
 found in reconciling several definitions 
 with the Anglo-Indian cases, the alle- 
 giancp cases, and the health cases tells 
 rather in favor of than against the cor- 
 rectness of the definitions, which, be- 
 
§ 59.] THE LAW OP DOMICIL. [CHAP. III. 
 
 tion of domicil, which will meet every case, has often been 
 admitted, and every attempt to frame one has hitherto 
 failed." 
 
 Still it is desirable, if not absolutely necessary, at the 
 beginning of a treatise to arrive at, with at least approximate 
 accuracy, a general conception of the subject which it is in- 
 tended to unfold. It is proposed, therefore, to give some of 
 the most celebrated definitions, together with such criticisms 
 as have been passed upon them by others, and such also as 
 may appear to the writer necessary and proper. 
 
 § 68. Definitions of the Roman Law ; Code. — The oldest and 
 by far the most celebrated definitions of domicil are those which 
 are to be found in the Roman law; the one most frequently 
 quoted being that of the Code : ^ "In eodem loco singulos 
 habere domicilium, non ambigitur, ubi quis larem, rerumque, 
 ac fortunarum suarum summam constituit, unde rursus non 
 sit discessurus, si nihil avocet : unde cum profectus est, pere- 
 grinari videtur : quod si rediit, peregrinari jam destitit." Do- 
 nellus^ criticises this definition as possessing more elegance 
 than certainty ; and Lord Alvanley ^ declares that its words are 
 very vague and difficult to apply. It is to be observed that 
 it is hardly a definition, but, to use the expression of Lord 
 Cranworth in Whicker v. Hume,* more properly " an illustra- 
 tion." " There is no doubt " that the circumstances set forth 
 would suffice to constitute domicil ; but would not circum- 
 stances far less cogent suffice ? Westlake ° remarks that it 
 would not " be just to the Eoman Emperors to represent them 
 as having attempted [a definition], in that pathetic descrip- 
 tion of home so often and deservedly quoted." 
 
 § 59. Id. id. Criticism of Lord Cranworth in Whicker v. 
 Hume. — In Whicker v. Hume, above referred to, Lord Cran- 
 worth thus speaks of this passage : " Upon the subject of 
 domicil my noble learned friend has alluded to one definition 
 which he said came from the Digest. It is ailso to be found 
 in the Codes, and was a principle of the Roman law. There 
 have been many others, but I never saw any of them that 
 
 1 Code 10, t. 39, 1. 7. 8 Somerville v. Somerville, supra. 
 
 " Comm. de Jure Civill, 1. 17, * 7 H. L. Cas. 124, 160. 
 
 c. 12, p. 978, 20 6, ed. Frankfort, 1626. 6 prfy. int. L. 1st ed. p. 31. 
 98 
 
§ 60.] DEFINITIONS. [CHAP. III. 
 
 appeared to me to assist us at all in arriving at a conclusion. 
 In fact, none of them is, properly speaiiing, a definition. They 
 are all illustrations, in which those who have made them have 
 sought to rival one another by endeavoring, as far as they can, 
 by some epigrammatic neatness or elegaijce of expression, to 
 gloss over the fact that, after all, they are endeavoring to 
 explain something clarum, per obscurum. By domicil we mean 
 home, the permanent home ; and if you do not understand 
 your permanent home I am afraid that no illustration drawn 
 from foreign writers or foreign languages will very much help 
 you to it. I think the best I have ever heard is the one 
 which describes the home as the place (I believe there is one 
 definition in which the lares are alluded to) , the place ' unde 
 non sit discessurus si nihil avocet ; unde cum profectus est, 
 peregrinari videtur.' I think that this is the best illustration, 
 and I use that word rather than definition to describe what I 
 mean." 
 
 § 60. Id. id. Criticism of Kindersley, V. C, in Lord v. Colvin. 
 — The remarks upon the same definition by Kindersley, V. C, 
 in Lord v. Colvin,^ are so appropriate and elegant that they 
 are here given in full : " It is not my intention to enter upon 
 an elaborate discussion of the various definitions which have 
 been given or attempted to be given of the term ' domicil ; ' at 
 the same time it is impossible to avoid some reference to 
 them. I concur with the observations of Lord Cranworth in 
 Whicker v. Hume, that many of them are rather illustrations 
 than definitions. Some of them also appear to me objection- 
 able, because they are expressed in language more or less 
 figurative, which ought never to be the case in what professes 
 to be a definition. Some of the Roman definitions are utterly 
 inapplicable to the present condition and habits of mankind. 
 The Roman definition most frequently cited is this : ' In 
 eodem loco, etc.' ... I confess that it has appeared to me 
 that this sentence is more to be admired for the neatness of 
 its latinity than for its merits as a legal definition. It seems 
 to me to be open to the objection of being (at least in the 
 first braneh of the sentence) expressed in figurative language. 
 
 1 i Drew. 366, 373. 
 
§ 60.J THE LAW OP DOMICIL. [CHAP. III. 
 
 Moreorer, it depends upon the manner in which it is trans- 
 lated whether it accords with the decisions of our courts ; and I 
 know of no sentence more difficult to translate. Almost every 
 important word presents some difficulty. ' Larem,' which 
 even to a Roman was a figurative expression, may be prop- 
 erly translated ' household,' meaning by that term the united 
 body, consisting of a man and his wife and children and 
 domestics dwelling together in one abode. ' Larem ' does not 
 signify the place of abode. The words are ' in eodem loco 
 ubi quis larem constituit ; ' i. e., a man has his domicil in 
 that place where he has established his ' larem.' The word 
 must mean not the place of residence, but the body which re- 
 sides there ; or perhaps more correctly, the act of co-residence 
 as members of the same family. It is not easy to suggest 
 a translation of the words ' rerum ac fortunarum summam ' 
 which shall be faithful to the original, and at the same time 
 convey to the mind a precise and definite idea. ' Res ' probably 
 here signifies ' business ; ' ' fortunes ' no doubt means ' posses- 
 sions ' or ' property ; ' but what does ' summa ' mean ? The 
 proper meaning is ,the ' sum ' or ' aggregate ; ' but it is, per- 
 haps, here used to signify 'the chief or principal part or 
 bulk.' Mr. Justice Story evidently felt the difficulty of ren- 
 dering this branch of the sentence into English ; and in order 
 to give something intelligible he has sacrificed accuracy of 
 translation. He renders it thus : ' There is no doubt that 
 every person has his domicil in that place which he makes 
 his family residence and principal place of his business.' ^ This 
 
 2 story's translation is as follows : which, without some special avocation, 
 " There is no doubt that every person he has no intention of departing ; from 
 has his domicil in that place which he which, when he has departed, he is con- 
 makes his family residence and principal sidered to be from home ; and to which, 
 place of business ; from which he is when he has returned, he is considered 
 not about to depart, unless some busi- to have returned home ; — in this place, 
 ness requires ; when he leaves it, he there is no doubt whatever, he has his 
 deems himself a wanderer ; and when domicil." Law of Dom. no. xi. p. 11. 
 he returns to it, he deems himself no In White v. White, supra, Cooper, J., 
 longer abroad." Story, Confl. of L. says: " The beautiful definition of the 
 § 42. Phillimore translates, or rather civil law is as unexceptionable as any 
 paraphrases, the same passage thus : which has been attempted, if we give to 
 " In whatsoever place an individual has the terms used a liberal ttenslation to 
 set up his household gods, and made the adapt them to the circumstances of 
 chief seat of his affairs and interests, from modem times ; for it combines precision 
 
 100 
 
§ 61.] DEFINITIONS. [CHAP. III. 
 
 is obviously rather a paraphrase than a translation. Again, the 
 term ' peregrinari ' in the last branch of the sentence requires 
 a particular translation to make the definition agree with the 
 decisions of our courts ; the word properly means ' to be in 
 a foreign country,' but if it is so translated, it militates with 
 the proposition now well established, that a man may estab- 
 lish a domicil in a foreign country, and in which he still 
 continues to be a foreigner. The word ' peregrinari ' must 
 therefore be translated ' to be a wanderer/ viz., from home, 
 and so Mr. Justice Story translates it. Therefore, if this 
 celebrated passage from the Roman law is to be used as a 
 definition by which our courts of justice are to be guided, 
 I think it must be translated in some such form as this: 
 ' There is no doubt that every person has his domicil in that 
 place where he has established his household and the chief 
 part or bulk of his business and property, from which he is 
 not intending to depart if nothing calls him away ; from 
 which when he goes away he seems to be wandering from 
 home, and when he has returned he has ceased wandering.' 
 Thus translated, the sentence may not be objected to on the 
 score of inaccuracy, though it is still open to the observation 
 that a man may have his family residence (liis ' larem ') in one 
 country and the chief part or bulk of his business (' rerum ac 
 fortunarum summam ') in another." 
 
 § 61. Id. Definitiona of the Digest. — Another passage from 
 the Roman law is frequently quoted and treated as a defini- 
 tion. It is by Ulpian, is found in the Digest,^ and is as fol- 
 lows : " Si quis negotia sua non in colonia, sed in municipio 
 semper agit, in illo vendit, emit, contrahit, eo in foro, balineo, 
 
 of language with poetic imagery. A * Dig. 50, 1. 1, 1. 27, § 1. Story {§ 42) 
 
 person's domicil is ' ubi quis, etc. . . . thus translates it : " If any one always 
 
 where he has his principal home and carries on his business, not in a colony 
 
 place for the enjoyment of his fortunes ; but in a municipality or city where he 
 
 which he does not expect to leave except buys, sells, and contracts, where he 
 
 for a purpose ; from which when absent makes use of and attends the forwm, 
 
 he seems to himself a, wayfarer ; to the public baths and public shows, 
 
 which, when he returns, he ceases to where he celebrates the holidays and 
 
 travel.' And yet this definition, beauti- enjoysall municipal privileges, and none 
 
 ful as it is, seems insufiicient to meet all in the colony, he is deemed there to 
 
 the varying phases of the actual, and the have his domicil, rather than in the 
 
 courts have not undertaken to adopt it place (colony) in which he sojourns for 
 
 or any other." the pnrpose of agriculture." 
 
 101 
 
§ 62.] THE LAW OF DOMICIL. [CHAP. III. 
 
 spectaculis utitur : ibi festos dies celebrat : omnibus denique 
 municipii commodis, nullis coloniarum, fruitur, ibi magis 
 habere domicilium, quam ubi colendi causa diversatur." 
 
 Most of the criticisms made upon the passage above quoted' 
 from the Code apply also to this passage. It is apparently a 
 statement of the most usual criteria of domicil to be found 
 in the life of a Roman, and is therefore more properly a 
 formula of evidence than a definition. 
 
 Alfenus Varus, in a passage also to be found in the Digest,^ 
 in answer to the question " Quid est domum ducere ? " says : 
 " Sed de ea re constitutum esse, eam domum unicuique nos- 
 trum debere existimari, ubi quisque sedes et tabulas haberet, 
 suarumque rerum constitutionem fecisset." But this defini- 
 tion, far from solving the difficulty, only increases it. For 
 what are we to understand by " sedes et tabulae," and what 
 by " rerum constitutio " ? 
 
 § 62. other Definitions: Donellus; John Voet; Hertius ; Fo- 
 thier ; Vattel. — Donellus,^ after criticising and pointing out 
 the uncertainty of the expressions used in the passage above 
 quoted from the Code, suggests as more concise and certain 
 a definition of his own, as follows: "Locus, in quo quis habitat 
 eo animo, ut ibi perpetuo consistat, nisi quid avocet." 
 
 John Voet says : ^ " Aliud insuper proprie dictum domici- 
 lium est, quod quis sibi constituit animo inde non discedendi, 
 si non aliud avocet." This definition Kindersley, V. C, in 
 Lord V. Colvin, considers " as little open to objection as any." 
 Hertius ^ defines domicil : " Ubi quis frequentius ac diutius 
 commorari solet, rerumque ac fortunarum suarum majorem 
 partem constituit." Pothier,* in his introduction to Book 50, 
 Title 1, of the Pandects, generalizes the Roman definitions 
 thus : " Domicilium facit potissimum sedes fortunarum suarum, 
 quas quis in aliquo loco habet." Vattel^ describes domicil as 
 " an habitation fixed in any place, with an intention of always 
 staying there." This definition has been frequently quoted 
 
 2 50, t. 16, 1. 203. « Ad Pand. 50, 1, introd. art. 2, 
 1 Op. cit. 1. 17, e. 12, p. 978, no. 18. 
 
 no. 30 h. 6 Droit des Gens, 1. 1, c. 19, § 218. 
 
 '^ Comm. ad Pand. 1. 5, t. 1, no. 94. " Le domicile est I'habitation fixee en 
 
 3 Opera, De Collisione Legum, p. quelque lieu, dans I'intention d'y demea- 
 177, ed. 1716. rer toujours." 
 
 102 
 
§ 63.] DEFINITIONS. [CHAP. Ill, 
 
 and criticised. Story ,« following Parker, Justice, in Putnam 
 V. Johnson,' says : " But this is not an accurate statement. It 
 would be more correct to say that that place is properly the 
 domicil of a person in which his habitation is without any 
 present intention of removing therefrom." Cujas ^ combines 
 in one the several Roman definitions thus : " Domicilium 
 cujusque ibi est ubi larem fovet, ubi sedes et tabulas rationum 
 suarum habet, ubi rerum et fortunarum suarum summam con- 
 stituit, ubi assidue versatur, negotiatur, ubi majorem suorum 
 bonorum partem habet, ubi festos dies agitat, utitur foro 
 eodem, balneo eodem, spectaculis." 
 
 § 63. Definitions of French Jurists. — The French writers 
 have made frequent attempts at the definition of domicil. 
 In addition to the several already given, the following may be 
 noted. Denizart^ says : " Domicil is the place where a person 
 enjoys his rights, and establishes his abode and the seat of his 
 fortune." Pothier ^ says : " It is the place where a person has 
 established the principal seat of his abode and of his busi- 
 ness." The " Encyclop^die Moderne " ^ defines it thus : " It is, 
 properly speaking, the place where one has fixed the centre of 
 his business." The French Code * declares : " The domicil 
 of every Frenchman, as to the exercise of his civil rights, is at 
 the place where he has his principal establishment." Demo- 
 lombe,* in commenting upon this definition, after quoting also 
 
 8 Confl. of L. § 43. que pour quelque cause momentande ; 
 
 ' 10 Mass. 488, 501. See infra, § 65. d'ou, quand il est absent, on dit qu'il est 
 
 ' Opera 5, 1148, c en voyage ; oh, quand il levient, on dit 
 
 1 The definition above given is qu'il est de retour ; oh il passe les prin- 
 
 quoted by Story (§ 43), who also gives cipales fStes de I'annee, oil il supporte 
 
 the original as follows : " Le domicile les charges publiques, oil il jouit des 
 
 est le lieu oil une persoune, jouissant de privileges de ceux qui en sont habitans." 
 
 ses droits, etablit sa demeure et le ^ Introd. Gte. aux Cout. d'OrWans, 
 
 siege de sa fortune." The 7th edition c. 1, § 1, no. 8. " C'est le lieu oil une 
 
 of the "Collection de Decisions" personne a itMi le siege principal 4e 
 
 (which is the one possessed by the sa demeure et de ses affaires." 
 
 writer and usually cited herein), pub- ' Verb. Dom. " C'est, k proprement 
 
 lished in 1771, six years after the death parler, I'endi-oit oil Ton a plac6 le centre 
 
 of Denizart, contains the following de ses affaires." 
 
 (verb. Dom. nos. 1 and 2): " On appelle * Art. 102. "Le domicile de tout 
 
 domicile, le lieu de la demeure ordinaire Franjais, quant h, I'exercice de ses droits 
 
 de quelqu'un. Le principal domicile de civils, est au lieu oil il a son principal 
 
 chacun est celui qu'il a dans le lieu etablissement." 
 
 oil U tient le si^ge et le centre de ses af- ' Cours de Code Kapoleon, t. 1, no. 
 
 faires, oil il a ses papiers, qu'il ne quitte 344. See also no. 338. 
 
 103 
 
§ 63.] THE LAW OF DOMICIL. [CHAP. in. 
 
 the definition contained in the Roman Code, says : " Such is 
 also the thought of Article 102, when it declares that the 
 domicil of every Frenchman is at the place of his principal 
 establishment, — that is to say, at the place which he has made 
 the centre of his affections, of his affairs and habits, — the seat, 
 in fine, of his social existence, rerum ac fortunarum suarum 
 summam, at the place where he is established in a manner 
 permanent and durable, with the intention of being there held, 
 of being there attached, of there returning sooner or later 
 whenever he is absent. It must be understood, besides, that 
 this word ' establishment ' ought here to receive a very broad 
 interpretation relatively to all the situations so diverse and 
 so varied of which society is composed. The aged servant 
 has his principal establishment in his little solitary chamber, 
 just as the most opulent pere de famille in his hdtel or the 
 merchant in his house of commerce. In what place, above all, 
 has he established his fixed abode ? Where is found, if I may 
 so express myself, his chief place, having regard to his per- 
 sonal situation ? Such is the question of domicil, a question 
 necessarily altogether relative. It is necessary, moreover, 
 not to confound domicil with residence; the one is de droit, 
 the other is de fait. Residence may be assuredly one of the 
 indices of the principal establishment which constitutes domi- 
 cil, and we say even that the actual habitation is one of the 
 conditions demanded when the question is concerning the 
 changing of it. But it is not the less certain that domicil 
 does not depend upon residence ; for it is an effect of the law, 
 a juridical creation, a thing intellectual and abstract ; it con- 
 sists, as we have said, in the moral relation of the person with 
 a certain place where the law has placed the juridical seat of 
 such person, independently of the fact of residence. It is 
 indeed that, above all, which constitutes the utility of this 
 institution ; for it has precisely for its object, to determine 
 in a manner regular, fixed, and constant, the domicil of the 
 person apart from his removals, his travels, his residence 
 more or less accidental and transient in other places." 
 
 "Domicil consists," says Proudhon,^ "in the moral rela- 
 tion of a man with the place of his residence, where he has 
 
 " Cours de Droit Franjais, t. 1, p. 119. 
 104 
 
§ 64.J DEFINITIONS. [CHAP. III. 
 
 fixed the administrative seat of his fortune, the establishment 
 of his affairs. We say ' in the moral relation,' because domi- 
 cil does not consist in physical existence or in actual resi- 
 dence in a place, but in the attachment contracted by the 
 person for the place chosen for the centre of his negotiations." 
 Demante "> says : " It is an effect of law which consists in the 
 relation established by law between a person and the place 
 where he exercises his rights." Ortolan ^ says : " Domicil 
 is nothing else than the legal seat, the juridical seat of every 
 person, — the seat where he is considered to be in the eyes of 
 the law, for certain applications of the law, whether he be 
 corporeally found there, or whether he be not found there." 
 Marcadfe* remarks: "Domicil is then the legal seat, the 
 juridical seat, of the person. We say the juridical seat ; for 
 domicil is not, properly speaking, the house, the material 
 construction ; it is a thing altogether ideal, a thing moral and 
 abstract, resulting solely from the creation of the law." And 
 again : i" " Domicil is the seat, purely moral and juridical, 
 which the law attributes to each person for the exercise of 
 the rights existing for or against such person." 
 
 § 64. Definitions of Savigny and Calvo. — Savigny ^ thus 
 defines domicil : " That place is to be regarded as a man's 
 domicil which he has freely chosen for his permanent abode, 
 and thus for the centre at once of his legal relations and his 
 business. The term permanent abode, however, excludes 
 neither a temporary absence nor a future change, the res- 
 
 ^ Cours Analytique, t. 1, p. 197. that the words " and thus for the centi-e 
 
 " Explication des Institutes, t. 1, at once of his legal relations and his 
 
 no. 80, p. 402. business," "appear to he superfluous, 
 
 ' Explic. du Code Nap. 1. 1, no. 309. since they point to a consequence of 
 
 1" Id. no. 334. the place being a permanent abode." 
 
 1 System, etc. vol. yiii. § 353 (Guth- He objects also that its terms might be 
 lie's trans, p. 97). According to Dicey taken to imply that a new domicil may 
 (p. 333) : " This definition brings into be gained before the actual transfer of 
 prominence exactly the point neglected bodily presence to the place of con- 
 by most writers, viz., the element of templated permanent abode, and fur- 
 choice or intention." But in the opinion ther that the words "freely chosen" 
 of the writer it is just here that the might be understood as excluding a 
 definition fails as a general definition of change of domicil where the change of 
 domicil, inasmuch as it omits to provide residence is in consequence of some de- 
 fer domicil attributed by law. (See gree of moral compulsion, such as nio- 
 in/ra, § 68. ) Dicey objects, however, tives of economy, health, and the like. 
 
 105 
 
§ 65.] THE LAW OF DOMICIL. [CHAP. III. 
 
 ervation of which faculty is plainly implied ; it is only meant 
 that the intention of mere transitory residence must not at pres- 
 ent exist." One of the latest definitions is that of Calvo,^ 
 who, though a South American diplomat, may be classed among 
 the continental jurists. He says : " In its juridical acceptar 
 tion, domicil is the legal seat where a person is presumed to 
 be in contemplation of the law and for the application of the 
 law. According to this definition, domicil would be an 
 abstraction purely intellectual, created solely by the law, an 
 effect of the law consisting in the relation established between 
 the person and the place where he exercises his rights. In 
 a usual and more practical acceptation, is meant by domicil 
 the place itself, where a person has established the seat of his 
 affairs and the centre of his interests." 
 
 § 65. American Definitions : Story ; President Rush ; Parker, J., 
 in Putnam v. Johnson. — Story's ^ definition, which has been 
 so often and so deservedly quoted, is as follows : " By the 
 term domicil, in its ordinary acceptation, is meant the place 
 where a person lives or has his home. In this sense the 
 place where a person has his actual residence, inhabitancy, 
 or commorancy, is sometimes called his domicil. In a strict 
 and legal sense that is properly the domicil of a person 
 where he has his true, fixed, permanent home and principal 
 establishment, and to which, whenever he is absent, he has 
 the intention of returning (animug revertendi')." President 
 Rush, in the leading American case of Guier v. O'Daniel,*^ 
 defines domicil " to be a residence at a particular place, 
 accompanied with positive or presumptive proof of continuing 
 it an unlimited time." This definition has been much quoted, 
 and with general approbation. It is highly commended by 
 Calvo,^ is repeated by Phillimore * with a slight modification, 
 and through the influence of his authority has produced some 
 effect in the English cases. 
 
 The definition of Parker, Justice, in Putnam v. Johnson," 
 
 2 Diet, de Droit Int. Pub. et Priv., « Manuel de Droit Int. Pub. et Priv. 
 verb. Dom. § 197. 
 
 1 Confl. of L. § 41. * Law of Domicil, no. 15, p. 13 ; 
 
 ^ 1 Binney, 349 n. Int. L. vol. iv. no. 49. 
 
 » 10 Mass. 488, 501. 
 
 106 
 
§ 65.] DEFINITIONS. [CHAP. III. 
 
 in the slightly inverted form in -which it has been given by- 
 Story, has also been received by many jurists in this country 
 as accurate. In that case the learned judge, commenting 
 upon the definition of Vattel, says : " The definition of domicil, 
 as cited from Vattel by the counsel for the defendants, is too 
 strict, if taken literally, to govern in a question of this sort ; 
 and if adopted here, might deprive a large portion of the 
 citizens of their right of suffrage. He describes a person's 
 domicil as the habitation fixed in any place, with an intention 
 of always staying there. In this ne-w and enterprising coun- 
 try it is doubtful whether one half of the young men, at the 
 time of their emancipation, fix themselves in any town with 
 an intention of always staying there. They settle in a place 
 by way of experiment, to see whether it will suit their views 
 of business and advancement in life, and with an intention 
 of removing to some more advantageous position if they 
 should be disappointed. Nevertheless, they have their home in 
 their chosen abode while they remain. Probably the meaning 
 of Vattel is that the habitation fixed in any place, without 
 any present intention of removing therefrom, is the domicil. 
 At least this definition is better suited to the circumstances 
 of this country." It is to be remarked, however, that 
 Putnam v. Johnson was a case of municipal domicil, and it 
 will be seen further on in this work that the definition there 
 given by Parker, Justice, is not applicable to cases of national 
 or gMasi-national domicil. It is believed that this distinction 
 has been overlooked by many of the judges who have sought 
 to apply this definition with sometimes unfortunate results. 
 
 The Louisiana Code,^ following the French Code, declares : 
 "The domicil of each citizen is in the parish wherein his 
 principal establishment is selected." An opinion of the 
 Louisiana Supreme Court,^ in applying this definition, defines 
 further thus : " A man's domicil is his home, where he estab- 
 lishes his household and surrounds himself with the apparatus 
 and comforts of life." Wharton ^ defines domicil as " a resi- 
 dence acquired as a final abode." 
 
 « Art. 42 (38). It further defines the ' Tanner i;. King, 11 La. K. 175, per 
 principal establishment as "that in Carleton, J. 
 which he makes his habitual residence." " Confl. of L. § 21. 
 
 107 
 
§ 67.] THE LAW OP DOMICIL. [CHAP. III. 
 
 § 66. Definitions of English Judges : Kindersley, V. C, in Lord v. 
 Colvin ; Lord Wenaleydale in 'Whicker v. Hume. — The English 
 judges have, with several exceptions, studiously avoided de- 
 fining domicil. Kindersley, V. C, who has decided more 
 cases on the subject of domicil than any other single English 
 judge, after carefully considering the definitions in the light 
 of the decided cases, suggests this : ^ " That place is properly 
 the domicil of a person in which he has voluntarily fixed the 
 habitation of himself and his family, not for a mere special 
 and temporary purpose, but with a present intention of making 
 it his permanent home, unless and until something (which is 
 unexpected or the happening of which is uncertain) shall 
 occur to induce him to adopt some other permanent home." 
 This definition, however, is unfavorably criticised by Lord 
 Chelmsford in the same case on appeal.^ Lord Wensleydale, 
 in Whicker v. Hume,^ adopts this as a " very good definition : " 
 " Habitation in a place with the intention of remaining there 
 forever, unless some circumstance should occur to alter his 
 intention." 
 
 § 67. English Text-writers : Phillimore, Poote, Westlake, Dicey. 
 — Phillimore,! in his work on our subject, referring to some 
 of the dicta of American judges, who he says have been most 
 successful in their attempts at definition, frames the following 
 as a tolerably accurate definition : " A residence at a par- 
 ticular place, accompanied with positive or presumptive proof 
 of an intention of remaining there for an unlimited time." 
 It will be seen that this is based mainly upon the language 
 of President Rush, in Guier v, O'Daniel. It has been much 
 quoted, and probably has had considerable effect in fixing the 
 description of the animus manendi requisite for a change of 
 domicil. The introduction into it, however, of the words 
 " positive or presumptive proof of," which also are in Presi- 
 dent Rush's definition, is criticised by Dicey ^ as being at best 
 superfluous, upon the ground that the maxim De non apparevr 
 tibus et non existentibus eadem est ratio is in law of universal 
 
 1 Lord V. Colvin, 4 Drew. 366. = 7 H. L. Cas. 124, 164. 
 
 2 Sub nam. Moorhouse v. Lord, 10 i Law of Dom. no. 15 ; also Int. L. 
 H. L. Cas. pp. 272, 285. See infra, vol. iv. no. 49. 
 
 § 166, where his criticism is given in a Appendix, note 1, p. 334. 
 full. 
 
 108 
 
§ 68.] DEFINITIONS. [CHAP. Ill, 
 
 application, and a fact which cannot be proved to exist has 
 for legal purposes no existence ; and further, " that they tend 
 to confuse together the inquiry. What is the nature of the fact 
 constituting domicil ? — or, in other words, its definition, — with 
 a different question. What is the evidence by which the exist- 
 ence of this act, when its nature is known, can be proved ? " 
 Foote ^ defines domicil " as the relation of an individual to a 
 particular State, which arises from his residence within its lim- 
 its as a member of its community." Westlake * says : " Domi- 
 cil then is the legal conception of residence, and the two words 
 differ no otherwise than, as in all sciences, common words, 
 on becoming technical, are limited in meaning for the sake 
 of precision." The objection to this statement as a definition 
 (if indeed it was intended as such, and probably it was not) 
 is that "residence" (particularly in American law) is used 
 in various senses, sometimes technical, sometimes untech- 
 nical ; and even when used technically its meaning is not, as 
 we shall see further on in this chapter, definitely fixed, but 
 depends much upon the subject to which it is applied. Dicey,* 
 in his valuable work on this subject, defines domicil to be 
 "the place or country which is considered by law to be a 
 person's permanent home." And this, with perhaps one 
 change, is as nearly accurate a definition as has been given. 
 Attention will be called further on to the fact that domicil is 
 not strictly, in a legal sense, the place where a person has his 
 home, but expresses the connection between such person and 
 place. 
 
 § 68. Definitions usually not Broad enough to include all 
 Phases of DomiciL — Most of the so-called definitions of domi- 
 
 ' Priv. Int. Jurisprudence, ch. 2, the facts whatever they may be, from 
 
 p. 8. which the courts infer that a person has 
 
 * Priv. Int. L. 1st ed. ch, 3, no. 30, a domicil in a particular country." 
 
 p. 30. Further on (p. 42, rule 1), speaking of 
 
 ' Pages 1, 29, 30. He adds (p. 31) : natural persons, he says : " The domicil 
 
 "The words 'considered by law' are of any person is, in general, the place 
 
 important, and point to the fact that a or country which is in fact his perma- 
 
 person's domicil need not necessarily be nent home, but is in some cases the 
 
 his actual home ; or, to put the same place or country which, whether it be 
 
 thing in another form, that the existence in fact his home or not, is detei-mined 
 
 of a domicil is not a mere question of to be his home by a rule of law." 
 fact, but an inference of law drawn from 
 
 109 
 
§68.] 
 
 THE LAW OP DOMICIL. 
 
 [chap. 
 
 III. 
 
 cil are not definitions of the term in its general scope and 
 meaning, but of domicil of choice, or that which is acquired by 
 the act and intention of an independent person, and, therefore, 
 do not cover either domicil of origin or that imputed by law 
 to dependent persons. Moreover, even as definitions of domi- 
 cil of choice or acquired domicil they are usually defective, 
 in that they relate only to the time of the acquisition of such 
 domicil, and do not provide for its retention by actual resi- 
 dence, where there has been a change of intention, or by in- 
 tention, where there has been a change of actual residence. 
 Again, many of them are not properly definitions at all, but 
 mere formulae of evidence framed apparently for the purpose 
 of succinctly stating the most usual criteria by which domicil 
 of choice is determined.^ 
 
 1 Following are a, number of addi- 
 tional definitions, some of which may 
 he useful to the student of the subject 
 of domicil : " Domicilium dicitur habi- 
 tatio alitjuo in loco constituta perpetuo 
 ibidem movendi animus — idiomate pa- 
 trio dicitur die Behatisung," Wolff, 
 Jus Gentium, c. 1, no. 137. "Domi- 
 cilium, domus, sedes domeatica, hab- 
 itatio certa et diuturna." Forcellini, 
 Lexicon, cura Faceiolati. "DerWohn- 
 ort ist da, wo einer sich in der Absicht 
 auflialt, um so lauge daselbst zu bleiben, 
 bis ihn hesondere Ursachen bestimmeu, 
 seinen Aufenthalt zu verandern." Gliick, 
 Commentary on the Pandects, vol. vi. 
 p. 264 ; bk. 5, t. 1, § 512. "En effet 
 quoique I'homme soit n6 pour se mouvoir 
 et parcourir cette terre que Dieu lui a 
 donnee U n'est pas fait pour demeurer 
 dans tons les lieux que la n^cessite 
 I'oblige de parcourir ; il fait n&essaire- 
 ment qu'il y ait un lieu de repos, un lieu 
 de choix et de predilection, un lieu de 
 soci^te, un lieu oh. il puisse jouir aveo 
 sa famille des avautages de ses travaux 
 et de ses peines, ce lieu est celui que 
 nous appellons domicile." Boullenois, 
 Traits de la Personalite, etc. obs. 32, 
 p. 40. " Dans I'acoeption la plus com- 
 mune, on entend par domicile le lieu oi 
 un individu fait sa demeure habituelle, 
 ou il a fix6 son ftablissement, ou il a 
 
 110 
 
 place le siege de sa fortune. " Desquiron, 
 Dom. et Abs. 1. 1, t. 1, no. 1, p. 41. 
 "Le mot domicile indique la relation 
 de I'homme avec un certain lieu, telle 
 ville ou tel village, et mSme, dans un 
 sens plus restreint, telle maison ou il a le 
 centre de ses affaii'es et ou il revient 
 naturellement, dfes qu'il n'en est point 
 fcarte par quelque interet ou quelque 
 soin temporaire." Vallette, Cours de 
 Code Civil, t. 1, p. 124, quoted by An- 
 celle, Thtee pour le Doctorat, p. 86. 
 In the course of the preparation of the 
 Code Napoleon, in his report to the Corps 
 Legislatif, Councillor of State Emmery 
 defined domicil as " le lieu oi une per- 
 sonne, jouissant de ses droits, a etabli 
 sa demeure, le centre de ses afiaires, le 
 siege de sa fortune " (Seance du 13 Ven- 
 tose. An 11). "II domicilio civile di 
 una persona i nel luogo in cui essa ha 
 la sede principals dei pi-opii affari ed 
 interressi." Codice Civile del Regno 
 d'ltalia, t. 2, 16. And to distinguish 
 domicil from residence, the same code 
 provides : " La residenza h nel luogo in 
 cui la persona ha la dimora abituale." 
 Loc. cit. The definition contained in 
 the Sardinian Code is almost identical 
 with that contained in the French Code 
 Civil. Codice Civil del Regno di Sar- 
 degna, t. 3, art. 66. Several late French 
 cases describe domicil as "the place 
 
§69.] 
 
 DEFINITIONS. 
 
 [chap. III. 
 
 § 69. Is DomicU Place or Iiegal Relation ? — There has been 
 considerable metaphysical discussion, of perhaps no very prof- 
 
 allotted to everybody for the use of his 
 civil rights." Melizet's Case, Bulletin 
 des Arrets de la Cour de Cassation, Jan- 
 uary, 1869, p. 16 ; s. o. Dalloz, Reoueil 
 PModique, 1869, pt. 1, p. 294, Sirey, 
 1869, pt. 1, p. 138, and Ott's Case, 
 Bulletin, etc. January, 1869, p. 17. 
 " El Diccionario de Legislacion " (p. 
 180) defines domicil as " the place where 
 one is established and resides with 
 his wife, children, and family, and 
 the greater part of his movable prop- 
 erty." Quoted in HoUiman v. Peebles, 
 1 Tex. 673, 688. " The place where a 
 man carries on his established business 
 and has his permanent residence is his 
 domicil." Crawford v. "Wilson, 4 Barb. 
 604, per Paige, J. " One may be said 
 to have a domicil in that place which 
 constitutes the principal seat of his 
 residence, of his business pursuits, con- 
 nections, attachments, and of his po- 
 litical and municipal relations." Wil- 
 son V. Terry, 11 Allen, 206. " Domicil 
 . . . means the place where a man estab- 
 lishes his abode, makes the principal 
 seat of his property, and exercises his 
 political rights." Chase v. MiUer, 41 
 Pa. St. 403, 420, per Woodward, J. 
 " It is always that place which has 
 more the qualities of a principal or 
 permanent residence, and more preten- 
 sions to be considered as such than any 
 other place." Rue High, Appellant, 2 
 Dougl. (Mich.) 515, per Wing, J. 
 
 Bishop, in his work on Marriage and 
 Divorce (vol. ii. bk. 2, § 118), has gone 
 farther than any other writer in attempt- 
 ing to compress "in a single sentence, 
 which shall serve as a clear outline," a 
 general view of the whole law of domicil. 
 He says : " Domicil, then, is the place 
 in which, both in fact and intent, the 
 home of a person is established without 
 any existing purpose of mind to return 
 to a former home ; it is the place where 
 the person lives, in distinction from the 
 place where he transacts his business j 
 the place where he chooses to abide, in 
 
 distinction from the place in which he 
 may be for a temporary purpose ; the 
 place which he has chosen, in distinc- 
 tion from one to which he may be 
 exiled ; if he is entitled in law to com- 
 mand where his place of residence shall 
 be, it is the place which he has him- 
 self selected, in distinction from any 
 place which another may have selected 
 for him ; if the person is an infant or a 
 married woman, it is the place which 
 the husband or father has ordained, in 
 distinction from the place of the person's 
 own choice ; it is ordinarily, in the case 
 of the wife, the place where the husband 
 has his domicil ; every person has a 
 domicil ; no person has but one ; it is 
 the place which the fact and the intent, 
 combining with one another and with 
 the law, gravitate to and centre in, as a 
 home." The learned writer does not 
 in terms declare this statement to be a 
 definition, although his language used 
 in introducing it seems to imply that he 
 so intended it. Moreover, if he did not 
 so intend it, it is difiicult to see why so 
 much pains have been used to bring, by 
 a trick of punctuation, the statement 
 within the compass of a single sentence. 
 As a definition, however, it is obviously 
 defective in many respects. 
 
 Upon the definition of domicil the 
 following cases may also be referred 
 to : Bell u. Kennedy, L. E. 1 Sch. 
 App. 307 ; ITdny v. Udny, id. 441 ; 
 Attorney-General v. Kent, 1, Hurl. & 
 Colt. 12 ; Attorney-General v. Kowe, 
 id. 31 ; In re Capdevielle, 2 id. 985 ; 
 Laneuville v. Anderson, 2 Spinks, 41 ; 
 The "Venus, 8 Cranch, 253 ; Mitchell v. 
 United States, 21 Wall. 350 ; Johnson 
 V. Twenty-one Bales, etc., 2 Paine, 601 j 
 s. c. "Van Ness, 5 ; White v. Brown, 2 
 Wall. Jr. C. Ct. 217 ; Littlefield v. 
 Brooks, 50 Me. 475 ; Oilman i). Gilman, 
 62 Me. 165 ; Hart v. Lindsey, 17 N". H. 
 235 ; Anderson v. Anderson, 42 "Vt. 
 350 ; Matter of Thompson, 1 Wend. 
 43 ; Matter of Wrigley, 8 id. 134 ; 
 111 
 
§ 69.] THE LAW OF DOMICIL. [CHAP. III. 
 
 itable nature, in France with regard to one point in the defi- 
 nition of domicil. Some jurists define it as " the place where,- 
 etc.," others as " at the place where, etc.," and others again 
 as a " relation between a person and the place where, etc." 
 The first form of expression, as appears from the definitions 
 above quoted, was in common use in France prior to the 
 adoption of the Code Civil ; and not in France only, but else- 
 where ; and it has continued to be used in many of the Ameri- 
 can and English definitions down to this day. This evidently 
 was not the idea of the Roman law, as is shown by the ex- 
 pressions " In eodem loco singulos habere domicilium non 
 ambigitur ubi, etc.," ^ " ibi magis habere domicilium." ^ " Rele- 
 gatus in eo loco . . .^domicilium habet." ^ " Domicilium autem 
 habere potest et relegatus eo loco," * " pluribus locis domicilium 
 habere," ^ etc. The jurists whose writings compose the body 
 of that law were careful to preserve substantially the expres- 
 sion " to have domicil in the place," nowhere declaring that 
 domicil is " the place." In the first draft of the Code Napoleon, 
 it was said : " Le domicile ... est le lieu ou ; " but this phrase 
 was amended so as to read " Le domicile ... est au lieu ou," 
 and since the adoption of that code French jurists in general 
 have sought to conform their definitions to its language. But 
 in endeavoring so to do, some — among whom are Proudhon,® 
 Demolorabe,^ and Demante^ — have described domicil as a 
 relation between a person and a place, and this has been vigor- 
 ously combated by others, among whom are Ortolan^ and 
 Marcad^.^" To serve a writ, to make a demand at the domicil, 
 or to summon before the tribunal of the domicil, say the last- 
 
 Hegeman v. Fox, 31 Barb. 475 ; Mayor An. 395 ; Hai-dy v. De Leon, 5 Tex. 
 
 V. Genet, 4 Hun, 487 ; Matter of Haw- 211. 
 
 ley, 1 Daly, 531 ; Harral v. Harral, 39 ^ Code 10, t. 39, 1. 7. See supra, 
 
 N. J. Eq. 279 ; Fry's Election Case, 71 § 5, note 1. 
 
 Pa. St. 302 ; Carey's Appeal, 75 id. 201; 2 Dig. 50, t. 1, 1. 27, § 1 ; supra.ii. 
 
 Hindman's Appeal, 85 id. 466 ; Long ' Id. 1. 22, § 3 ; supra, id. 
 
 17. Ryan, 30 Gratt. 718 ; Home v. * Id. 1. 27, § 3 ; supra, id. 
 
 Home, 9 Ired. 99 ; State v. Grizzard, ^ i^_ L 6, § 2 ; supra, id. 
 
 89 N. C. 115 ; Hayes v. Hayes, 72 111. 6 gupra, § 63 and note 6. 
 
 312 ; Smith v. Smith, 4 Greene (Iowa), ^ Supra, id. and note 5. 
 
 266 ; State v. Dodge Co., 56 "Wis. 79 ; 8 Supra, id. and note 7. 
 
 Stratton v. Brigham, 2 Sneed (Ky.), » Op. eit. t. 1, p. 402, no. 80, note. 
 
 420 ; Hairston v. Hairston, 27 Mias. W Op. eit. t. 1, 309. 
 
 704 ; Succession of Franklin, 7 La. 
 
 112 
 
§ 70.J DEFINITIONS. [CHAP. III. 
 
 named jurists, -would be to serve a writ, to make a demand at 
 the legal relation, or to summon before the tribunal of the 
 legal relation, — "a strange cacophony," says Ortolan. But 
 such criticisms, as has been justly remarked," might be ex- 
 pected rather from a grammarian than from a jurist. Both 
 of these writers describe domicil as the legal or juridical seat 
 of a person. But what is the legal or juridical seat of a 
 person, if it does not express a relation of the person witli 
 a place? Marcad^, however, while admitting the idea of 
 legal relation, holds that domicil " is the seat which the law 
 creates in consequence of that relation." The truth is that 
 the question may be looked at from several sides, and it prob- 
 ably might be quite as plausibly argued that domicil is the 
 relation, and the juridical seat is the consequence of domicil. 
 It therefore seems to the writer entirely accurate to describe 
 domicil as a relation between person and place. This view 
 has been taken in Bell v. Kennedy ^^ by Lord Westbury, who 
 says : " Domicil is an idea of the law. It is the relation which 
 the law creates between an individual and a particular locality 
 or country." 
 
 § 70. Domicil and Home. Similarity. — " It may be cor- 
 rectly said," remarks Grier, J., in White v. Brown,^ " that no 
 one word is more nearly synonymous with the word ' domicil ' 
 than our word 'home.' " "'Domicil' answers very much to the 
 common meaning of our word ' home ; ' and where a person 
 possessed two residences, the phrase, ' he made the latter his 
 home,' would point out that to be his domicil."^ And the 
 two words have been pronounced to be substantially equiva- 
 lent in many cases both in this country and in England.^ 
 
 11 De Fongaufier, Thhse pour le Doe- 124 ; Moorhouse v. Lord, 10 id. 272 ; 
 
 torat, p. 70. The simple answer to Jopp v. Wood, 4 De G. J. and S. 616 ; 
 
 criticisms such as those ahove referred Laneuville v. Anderson, 2 Spinks, fl ; 
 
 to is that {e.g., to serve a writ) "at the Lambe v. Smith, 15 Mees. & W. 433 ; 
 
 domicil " of a person is merely an ellip- Mitchell v. United States, 21 Wall, 
 
 tical expression for "at the place of his 360; Exeter v. Brighton, 15 Me. 58 ; 
 
 domicil." Shaw v. Shaw, 98 Mass. 158; State 
 
 12 L. R. 1 Sch. App. 307, 320. v. Aldrich, 14 R. I. 171 ; Chaine v. 
 
 1 1 Wall. Jr. C. Ct. 217. Wilson, 1 Bosworth, 673 ; Fry's Elec- 
 
 2 Phillimore, Dom. ch. 2, no. 15, tion Case, 71 Pa. St. 302 ; Roberts v. 
 p. 13; Id. Int. L. vol. iv. no. 49. Cannon, 4 Dev. & B. 256 ; Home v. 
 
 '■> Whicker v. Hume, 7 H. L. Cas. Home, 9 Ired. 99; Smith v. Croom, 
 
 8 113 
 
§70.] 
 
 THE LAW OP DOMICIL. 
 
 [chap. III. 
 
 Thus, for example, "dwelleth" and "hath his home," as used 
 in the Constitution of Massachusetts, are construed by the 
 Supreme Court of that State to have reference to domicil for 
 the purpose of voting, and are used as synonymous with that 
 term with reference to various other purposes.* Such un- 
 doubtedly was the idea also of the Roman law at a time when 
 the notion of domicil was much less technical than it now is. 
 
 7 Fla.81; Venable v. Paulding, 19 Minn. 
 488. And see the Massachusetts cases 
 cited in next note. In Attorney-Gen- 
 eral V. Eowe, Brarnwell, B., says it has 
 occurred to hira " whether one might 
 not interpret this word ' domicil' by 
 substituting the word ' home ' for it, — 
 not home in the sense in which a man 
 who has taken a lodging for a week in a 
 watering-place might say he was going 
 home ; nor home in the sense in which 
 a colonist, born in a colony, intending 
 to live and die there, might say he was 
 coming home when he meant coming to 
 England, but using the word ' home ' in 
 the sense in which a man might say, ' I 
 have no home ; I live sometimes in 
 London, sometimes in Paris, sometimes 
 in Eome, and I have no home.' " 31 
 L. J. Ex. 314, 320 ; b. c. 1 Hurl. & 
 Colt. 31, 44. But the report of this 
 passage in the latter book is obviously 
 erroneous. 
 
 The Maine Settlement cases, on the 
 other hand, distinguish between domi- 
 cil and home, and in applying the latter 
 term in the technical sense in which it 
 is used in the pauper laws of that 
 State hold it to mean something leas 
 than the former. Thus in Exeter «. 
 Brighton, 16 Me. 58, 60, Weston, U. J., 
 says ; " Home and domicil may, and 
 generally do, mean the same thing ; but 
 a home may he relinquished and aban- 
 doned while the domicil of the party, 
 upon which his civil rights and duties 
 depend, may in legal contemplation re- 
 main." In North Yarmouth u.West Gar- 
 diner, 58 Me. 207, 211, Danforth, J., 
 says: "Another principle which maybe 
 considered as well settled in this State 
 is that a residence once established may 
 be abandoned or lost without having ac- 
 
 114 
 
 quired another. In regard to ' domicil,' 
 a word not used in the pauper laws, it 
 is different. This cannot be lost with- 
 out gaining another. Every person 
 owes some duties to society, has some 
 obligations to perform to the government 
 under which he lives, and from which 
 he receives protection. These duties 
 and obligations are not to be laid aside 
 at will, but rest upon and attach to the 
 person from the earliest to the latest 
 moment of his life. His domicil is the 
 place where those duties are defined and 
 are to be performed. It is imposed upon 
 him by the law. at his birth ; and 
 though when arriving at legal age he 
 may choose the place where it shall be, 
 it is not at his option whether he shall 
 be without any. With regard to a resi- 
 dence or home it is entirely diflferent. 
 This is a matter of privilege exclusively. 
 It imposes no public burdens, but is 
 private in its nature, relates to personal 
 matters alone, and is the place about 
 which to a greater or less extent cluster 
 those things which supply personal needs 
 or gratify his affections. Hence it is 
 purely and solely a matter of choice, 
 not only where it shall be, but also 
 whether there shall be any.'' To the 
 same effect see Phillips v. Kingsfield, 
 19 Me. 375; Jefferson v. Washington, id. 
 293; Warren v. Thomaston, 43 id. 406; 
 Littlefield v. Brooks, 50 id. 475, and 
 generally the Maine Settlement cases. 
 
 * Putnam v. Johnson, 10 Mass. 488 ; 
 Opinion of the Judges, 5 Mete. 587 ; 
 Abington v. North Bridgewater, 23 
 Pick. 170 (see infra, § 76, note 2); 
 Langdon v. Doud, 6 Allen, 423 ; Otis 
 V. Boston, 12 Gush. 44 ; Thayer v. Bos- 
 ton, 124 Mass. 132 ; Borland v. Boston, 
 132 Mass. 89; 
 
§T1-] 
 
 DEFINITIONS. 
 
 [chap. hi. 
 
 § 71. Id. Differences. — There are several objections, how- 
 ever, to affirming the entire and universal equivalency of 
 " domicil " and " home : " ^ — 
 
 1 Dicey, witli his usual clear and 
 thorough analysis, considers the subject 
 of home and its relation to domicil at 
 considerable length. His remarks are 
 so valuable that the liberty is taken of 
 reproducing some of them at length. 
 He says (p. 42 et seq. ) : — 
 
 " Some. — The word ' home ' is not a 
 term of art, but a word of ordinary dis- 
 course, and is usually employed without 
 technical precision. Yet, whenever a 
 place or country is termed, with any 
 approach to accuracy, a person's home, 
 reference is intended to be made to a 
 connection or relation between two facts. 
 Of these facts the one is a physical fact, 
 the other is a mental fact. 
 
 ' ' The physical fact is the person's 
 'habitual physical presence,' or, to use 
 a shorter and more ordinary term, ' resi- 
 dence,' within the limits of a particular 
 place or country. The mental fact is 
 the person's ' present intention to reside 
 permanently, or for an indefinite period,' 
 within the limits of such place or coun- 
 try ; or, more accurately, the absence of 
 any present intention on his part to 
 remove his dwelling permanently, or 
 for an indefinite period, from such place 
 or country. This mental fact is techni- 
 cally termed, though not always with 
 stiict accuracy, the anitmis manendi, 
 or 'intention of residence.' 
 
 " When it is perceived that the ex- 
 istence of a person's home in a given 
 place or country depends on a relation 
 between the fact of residence and the 
 animus manendi, further investigation 
 shows that the word 'home,' as applied to 
 a particular place, or country, may be 
 defined or described in the following 
 terms, or in words to the same effect : — 
 
 " ' A person's home is that place or 
 dountry, either (i. ) in which he, in fact, 
 resides with the intention of residence 
 (animus manendi), or (ii.) in which, 
 having so resided, he continues actually 
 to reside, though no longer retaining 
 the intention of residence (animus ma- 
 
 nendi), or (iii.) with regard to which, 
 having so resided there, he retains the 
 intention of residence (animus manen- 
 di), though he in fact no longer resides 
 there.' 
 
 " More briefly, a person's ' home ' is 
 ' that place or country in which either 
 he resides with the intention of resi- 
 dence (animus manendi), or in which he 
 has so resided, and with regard to which 
 he retains either residence or the inten- 
 tion of residence.' 
 
 "This definition or formula accu- 
 rately describes all the circumstances or 
 cases under which a given person D. 
 may, with strict accuracy, be said to 
 have a home in a particular country, 
 e. g., England ; or, in other words, in 
 which England can be termed his home, 
 and excludes the cases in wliich Eng- 
 land cannot with accuracy be termed 
 his home. The first clause of the for- 
 mula or definition describes the condi- 
 tions under which a home is acquired. 
 The second and third clauses describe 
 the conditions under which a home is 
 retained. The meaning and effect of 
 the whole definition is most easily seen 
 from examples of the cases in which, 
 under it, a. country can, and a country 
 cannot, be considered D.'s home. . . . 
 
 " From our formula . . . the con- 
 clusion follows that as a home is ac- 
 quired by the combination of actual 
 residence (fcuitum) and of intention of 
 residence (animus), so it is (when once 
 acquired) lost or abandoned only when 
 hoth the residence and the intention to 
 reside cease to exist. If, that is to say, 
 D., who has resided in England as his 
 home, continues either to reside there 
 in fact, or to retain the intention of re- 
 siding there permanently, England con- 
 tinues to be his home. On the other 
 hand, if D. ceases both to reside in 
 England and to entertain the intention 
 of residing there permanently, England 
 ceases to be his home, and the process 
 of abandonment is complete. If, to 
 
 115 
 
§T1.] 
 
 THE LAW OF DOMICIL. 
 
 [chap. III. 
 
 First. Because, while the former is a word of at least ap- 
 proximately precise meaning, the latter is used in various 
 
 such giving up of a home by the cessa- 
 tion both of residence and of the ani- 
 mus manendi, we apply the terms 
 'abandon" and 'abandonment,' the 
 meaning of the word ' home ' may be de- 
 fined with comparative brevity. 
 
 " A ' home' (as applied to a place or 
 country) means ' the place or country 
 in which a person resides with the ani- 
 mus manendi, or intention of residence, 
 or which, having so resided iu it, he has 
 not abandoned.' 
 
 " This definition or description of a 
 home, in whatever terms it is expressed, 
 gives rise to a remark which will be 
 found of considerable importance. This 
 is, that the conception of a place or 
 country as a home is in no sense a legal 
 or a technical idea, since it arises from 
 the relation between two facts, 'actual 
 residence' and 'intention to reside,' 
 neither of which has anything to do 
 with the technicalities of law. A pei-- 
 son might have a home in a place where 
 law and law courts were totally un- 
 known, and the question whether a 
 given place is or is not to be considered 
 a particular person's home is in itself 
 a mere question of fact, and not of law. 
 
 " It is worth while to insist on the 
 jion-legal or natural character of the 
 notion signified by the word 'home,' 
 because from the definition of a home, 
 combined with knowledge of the ordi- 
 nary facts of human life, flow several 
 conclusions which have a very close 
 connection with the legal rules, deter- 
 mining the nature, acqtiisition, and 
 change of domicil. 
 
 "Of these results flowing from the 
 definition of a home, considered merely 
 as a natural fact, without any reference 
 to legal niceties or assumptions, the fol- 
 lowing are the principal : — 
 
 " First. The vast majority of man- 
 kind (in the civilized parts of the world 
 at least) have a home, since they gener- 
 ally reside iu some country, e. g., Eng- 
 land or France, without any intention 
 of ceasing to reside there. It is never- 
 
 116 
 
 theless clear (if the thing be looked at 
 merely as a matter of fact without any 
 reference to the rules of law) that a per- 
 son may be homeless. There may be no 
 country of which you can at a given 
 moment with truth assert that it is in 
 fact D.'s home." 
 
 After giving instances he continues : 
 " In these instances a person is as a 
 matter of fact homeless, and if, as we 
 shall find to be the case, he is consid- 
 ered by law to have a home in one coun- 
 try rather than in another, or, in other 
 words, if he has a domicil, this is the 
 result of a legal convention or assump- 
 tion. He acquires a home not by his 
 own act, but by the operation of law. 
 
 " Secondly. The definition of home 
 suggests the inquiry, which has, in fact, 
 been sometimes raised in the courts, 
 whether a person can have more than 
 one home at the same time, or, in other 
 words, whether each of two or more 
 countries can at the same moment be 
 the home of one and the same person ? 
 
 " The consideration of what is meant 
 by ' home ' shows that (if the matter be 
 considered independently of all legal 
 rules) the question is little more than 
 one of words." 
 
 After supposing a case, he con- 
 tinues : " If the question be asked 
 whether D. has two homes, the answer 
 is that the question is mainly one of 
 language. If the intention entertained 
 by D. to reside in each country be not 
 a sufficient animus matiendi as to each, 
 then D. is to be numbered among the 
 persons who in fact have no home. If 
 it be a sufficient animus manendi, then 
 D. is correctly described as having two 
 homes. 
 
 " Thirdly. The abandonment of 
 one home may either coincide with or 
 precede the acquisition of a new horns. 
 In other words, abandonment of one 
 home may be combined with settlement 
 in another home, or else may be the 
 simple abandonment of one home with- 
 out the acquisition of another. 
 
§71.J 
 
 DEFINITIONS. 
 
 [chap. III. 
 
 significations; for example, (a) with reference to a tempo- 
 rary abiding-place, as when one speaks of " going home " to 
 
 "D., for example, goes from Eng- 
 land where he is settled, to France on 
 business. At the moment of leaving 
 England, and on his arrival in France, 
 he has the fullest intention of returning 
 thence to England, as his permanent 
 residence. This purpose continues for 
 the first year of his residing in France. 
 D., therefore, though living in France, 
 still retains his English home. At the 
 end of the year he makes np his mind 
 to reside pei-mauently in France. From 
 that moment he acquires a French, and 
 loses his English home. The act of 
 acqnisition and the act of abandon- 
 ment exactly coincide. They must, 
 from the nature of the case, be com- 
 plete at one and the same moment. 
 
 " The act of abandonment, however, 
 often precedes the act of acquisition. 
 D. leaves England with the intention 
 of ultimately settling in France, hut 
 journeys slowly to France, travelling 
 through Belgium and Germany. From 
 the moment he leaves England, his 
 English home is lost, since from that 
 moment he gives up both residence and 
 intention to reside in England ; but dur- 
 ing his journey no French home is 
 acquired, for though he intends to set- 
 tle in France, residence there cannot 
 begin till France is reached. The rela- 
 tion between the abandonment of one 
 home and the acquisition of another 
 deserves careful consideration, for two 
 reasons. 
 
 " The first reason is, that the prac- 
 tical difficulty of deciding in which of 
 two countries a person is at a. given 
 moment to be considered as domiciled, 
 arises (in general) not from any legal 
 subtleties, but from the difficulty of 
 determining at what moment of time, if 
 at all, a person resolves to make a coun- 
 try, in which he happens to be living, 
 his permanent home. . . . 
 
 "The second reason is, that there 
 exists a noticeable difference between 
 the natural result of abandonment and 
 the legal rule as to its effect. As a 
 
 matter of fact, a person may abandon 
 oue home without acquiring another. 
 As a matter of law, no man can aban- 
 don his legal home or domicil without, 
 according to circumstances, either ac- 
 quiring a new, or resuming a former 
 domicil. 
 
 "Fourthly. From the fact that the 
 acquisition of a home depends upon 
 freedom of action or choice, it follows 
 that a large number of persons either 
 cannot or usually do not determine for 
 themselves where their home shall be. 
 Thus, young children cannot acquire a 
 home for themselves ; boys of thii-teeu 
 or fourteen, though they occasionally 
 do determine their own place of resi- 
 dence, more generally find their home 
 chosen for them by their father or guar- 
 dian ; the home of a wife is usually the 
 same as that of the husband, and, 
 speaking generally, persons dependent 
 upon the will of others have, in many 
 cases, the home of those on whom they 
 depend. This is obvious ; but the fact 
 is worth notice, because it lies at the 
 bottom of what might otherwise appear 
 to be arbitrary rules of law, e. g. , the 
 mle that a wife can in no case have 
 any other domicil than that of her hus- 
 band. 
 
 "Domicil. — As a, person's domicil 
 is the place or country which is consid- 
 ered by law to be his home, and as the 
 law in general holds that place to be a 
 man's home which is so in fact, the no- 
 tion naturally suggests itself that the 
 word ' domicil ' and the word ' home ' 
 (as already defined) mean in reality the 
 same thing, and that the one is merely 
 the technical equivalent for the other." 
 After quoting Bramwell, B., in Attor- 
 ney-General V, Rowe, supra, § 70, note 3, 
 he continues : " The notion, however, 
 expressed in the passage cited is, though 
 countenanced by high authoiities, falla/- 
 cious. This idea, that the word ' home ' 
 means, when strictly defined, the same 
 thing as the term ' domicil,' is based on 
 the erroneous assumption that the law 
 
 IIT 
 
§71.] 
 
 THE LAW OF DOMICIL. 
 
 [chap. III. 
 
 liis lodgings, — and this certainly is not domicil ; (5) with 
 reference to a permanent or usual abiding-place, as when one 
 
 always considers that place to be a per- 
 son's home which actually is his home, 
 and on the omission to notice the fact 
 that the law in several instances attrib- 
 utes to a person a domicil in a country 
 where in reality he has not, and perhaps 
 never had, a home. Thus the rule that 
 a domiciled Englishman, who has in 
 fact abandoned England without acquir- 
 ing any other home, retains his English 
 domicil, or the principle that a married 
 woman is always domiciled in the coun- 
 try where her husband has his domicil, 
 involves the result that a person may 
 have a domicil who has no home, or that 
 a woman may occasionally have her 
 domicil in one country, though she 
 has her real home in another. An at- 
 tempt therefore to obtain a complete 
 definition of the legal term ' domicil,' by 
 a precise definition of the non-legal teim 
 'home,' can never meet with complete 
 success, for a definition so obtained will 
 not include in its teims the conven- 
 tional or technical element which makes 
 up part of the meaning of the word 
 'domicil.' 
 
 " The question may naturally occur 
 to the reader. Why is it that the term 
 ' domicil ' should not be made to coincide 
 in meaning with the word ' home,' or, 
 in other words, why is it that the courts 
 consider in some instances that a place 
 is a person's home, which is not so in 
 fact? 
 
 " The answer is as follows : It is for 
 legal purposes of vital importance, that 
 eveiy man should be fixed with some 
 home or domicil, since otherwise it may 
 be impossible to decide by what law his 
 rights, or those of other persons, are to 
 be determined. The cases, therefore, 
 of actual homelessness must be met by 
 some conventional rule ; or, in other 
 words, a person must have a domicil, or 
 legal home, assigned to him, even though 
 he does not possess a real one. It is, 
 again, a matter of great convenience that 
 a person should be treated as having 
 his home, or being domiciled, in the 
 
 118 
 
 place where persons of his class or in 
 his position would in general have their 
 home. The law, therefore, tends to con- 
 sider that place as always constituting 
 a person's domicil which would gener- 
 ally be the home of persons occupying 
 his position. Thus the home of an in- 
 fant is generally that of his father, and 
 the home of a wife is generally that of 
 her husband. Hence the rule of law 
 assigning to an infant, in general, the 
 domicil of his father, and to a married 
 woman, invariably, the domicil of her 
 husband. 
 
 " The considerations of necessity or 
 of convenience introduce that conven- 
 tional element into the rules as to 
 domicil which make the idea itself a 
 technical one and different from the 
 natural conception of home. As these 
 conventional rules cannot be conven- 
 iently brought under any one head, there 
 is a difficulty in giving a neat definition 
 of domicil as contrasted with home. 
 Since, however, the courts generally 
 hold a place to be a person's domicil 
 because it is in fact his permanent 
 home, though occasionally they hold a 
 place to be a person's domicil because it 
 is fixed as such by a rule of law, a 
 domicil may accurately be described in 
 the terms of our rule, and we may lay 
 down that a person's domicil is in gen- 
 eral the place or country which is in 
 fact his peimanent home, though iu 
 some cases it is the place or country 
 which, whether it be in fact his home or 
 not, is determined to be his home by a 
 rule of law. 
 
 ' ' Comparison of Home and Domicil. 
 — The word ' home ' denotes n merely 
 natural and untechnical conception, 
 based upon the relation between a per- 
 son's residence and his intention as to 
 residence. The term ' domicil ' is a name 
 for a legal conception, based upon, and 
 connected with, the idea of home, but 
 containing in it elements of a purely legal 
 or conventional character. Whether a 
 place or country is a man's home, is a 
 
§ 71.J DEFINITIONS. [CHAP. III. 
 
 in emigrating to a new country says, " Here I fix my home ; " 
 or when an Englishman during a temporary absence on the 
 Continent says, " My home is in England ; " or (c) in a figu- 
 rative sense with reference to a former place of abode for 
 which great attachment is felt, although the person may 
 not retain the slightest expectation or intention of returning 
 to it, as where a colonist speaks of the mother country as 
 " home." In addition to these, various other shades of mean- 
 ing have been attached to the word ; and this unsettled and 
 varying signification has led many jurists, when they wish 
 to employ the word " home " in their descriptions of domicil, 
 to qualify it with some adjective word or phrase expressive of 
 permanency .2 Primarily and properly, perhaps, " home " in- 
 cludes the idea of permanency ; ^ but contrary usage seems 
 to render the express qualification useful if not necessary. 
 
 Second, "When used in the sense last described, i. e., in con- 
 nection with the qualifying idea of permanency, the " home " 
 of the person usually corresponds with his " domicil," but not 
 always. The conception of domicil, being a creation of the 
 law, contains within it certain legal fictions established for 
 the purpose of giving greater precision and certainty in the 
 application of various rules of law. But these fictions are 
 not recognized as belonging to the ordinary conception of 
 home, and consequently a person's domicil and home may be 
 in different places. Take, for example, the case of a married 
 woman living apart from her husband by mutual agreement 
 without sentence of a court. Clearly her home in the ordinary 
 sense of the word is not that of her husband, and yet the law 
 by a fiction imputes to her a home with him ; or perhaps, to 
 
 question of fact. Whether a place or 616, per Turner, L. J. ; Douglas v. 
 
 country is a man's domicil, is a question Douglas, L. R. 12 Eq. Cas. 617, per 
 
 of mixed fact and law, or rather of the Wickens, V. C. ; Lord v. Colvin, 4 
 
 inference drawn by law from certain Drew. 366, per Kindersley, V. C. | Du- 
 
 facts, though in general the facts which puy ■». Wurtz, 53 N. Y. 556 ; Fry's 
 
 constitute a place a man's home are the Election Case, 71 Pa. St. 302 ; Home 
 
 same facts as those from which the law v. Home, 9 Ind. 99 ; Hayes v. Hayes, 
 
 infers that it is his domicil ." 74 111. 312; Hairston v Hairston, 27 
 
 2 Whicker v. Hume, 7 H. L. Cas. Miss. 704 ; Story, § 41 ; Dicey, 1, 3, 29, 
 
 124, per Cranworth; Moorhouse v. Lord, 30, and passim. 
 
 10 id. 272, per Chelmsford ; Jopp ' Doucet v. Geoghegan, L. R. 9 Ch. 
 
 V. Wood, 34 Beav. 88, per Romilly, D. 441, per Jessel, M. E.; Smith v. 
 
 M. R. ; s. c. on appeal, 4 De 6. J. & S. Croom, 7 Fla. 81. 
 
 119 
 
§ 73.] THE LAW OF DOMICIL. [CHAP. III. 
 
 speak more accurately, the law closes its eyes to the real 
 facts, and will not suffer it to be alleged that man and wife 
 live apart.* Again, when a person sui juris, and capable of 
 acting for himself, quits the place where his settled abode has 
 been fixed, intending never to return, until he fixes himself 
 in a sufficient manner elsewhere, he is clearly homeless in 
 fact, yet he is not without domicil. For the law, to attain 
 certain wise results, imputes to every person a domicil some- 
 where, and for this purpose holds that a domicil when once 
 established cannot be lost by mere abandonment, but contin- 
 ues until another is acquired." It thus results that a person 
 may be in the position of having a domicil but no home in the 
 ordinary sense. 
 
 § 72. Id. Home the Fundamental Idea of Domicil. — But in 
 spite of this lack of entire correspondence between the two 
 conceptions, home is the fundamental idea of domicil ; and 
 this cannot be kept too faithfully in view. The law takes the 
 conception of home, and moulding it by means of certain fic- 
 tions and technical rules to suit its own requirements, calls it 
 domicil; or perhaps this may be best expressed by slightly 
 altering Westlake's statement ^ and saying, "Domicil is the 
 legal conception of" home. 
 
 To combine, then, what has been said in this and the last 
 preceding sections, Domicil expresses the legal relation exist- 
 ing between a person and the place where he has, in eontempla- 
 tion of law, his permanent home. 
 
 § 73. Domicil and Residence. — "Residence" is another word 
 which is frequently used in connection with the subject of 
 domicil. But great caution must be observed in its employ- 
 ment, as it is a word of very indefinite meaning, and to which 
 different significations and many shades of meaning have 
 been attached. It is frequently used in the sense of mere 
 bodily presence in a place, without reference to time or contin- 
 uance. It is employed sometimes to denote mere temporary 
 presence in a place, and sometimes to denote the most settled 
 and permanent abode there, with every conceivable shade of 
 meaning between these two extremes. It is sometimes used 
 
 * See infra, ch. 10. ^ ggg infra, oh. 4. i Supra, § 67 
 
 120 
 
§73.] 
 
 DEFINITIONS. 
 
 [chap. hi. 
 
 to signify the act of "residing" at a place, sometimes the 
 place -where a person " resides," and at other times the rela- 
 tion between person and place. It commonly imports some- 
 thing less fixed and stable than, and to that extent different 
 from, domicil ; and a distinction is taken between the actual 
 and legal residence,^ the latter being generally deemed equiva- 
 lent to domicil. 
 
 1 See, for example, Shattuck v. 
 Maynard, 3 N. H. 123; Long t>. Ryan, 
 30 Giatt. 718 ; Crawford v. Wilson, i 
 Barb. 504 ; Cohen v. Daniels, 25 Iowa, 
 88 ; Fitzgerald v. Arel, 63 id. 104. In 
 Longv. Eyan, Staples, J., says : "There 
 is a wide distinction between domicil 
 and residence recognized by the most 
 approved authorities. Domicil is de- 
 fined to be a residence at a particular 
 place accompanied with positive or pre- 
 sumptive -proof of an intention to re- 
 main there for an unlimited time. To 
 constitute domicil two things must 
 concur ; first, residence ; secondly, the 
 intention to remain there. Domicil, 
 therefore, means more than residence. 
 A man may be a resident of a particu- 
 lar locality without having his domicil 
 there. He can have but one domicil at 
 one and the same time, at least for the 
 same purpose, although he may have sev- 
 eral residences. According to the most 
 approved writers and lexicographers, res- 
 idence is defined to be the place of abode, 
 a dwelling, a habitation, the act of abid- 
 ing or dwelling in a place for some con- 
 tinuance of time. To reside in a place is 
 to abide, to sojourn, to dwell there per- 
 manently or for a length of time. It is 
 to have a permanent abode for the time 
 being as contradistinguished from a mere 
 temporary locality of existence. 
 
 "Notwithstanding these definitions, 
 it is extremely difficult to say what is 
 meant by the word ' residence ' as used 
 in particular statutes, or to lay down 
 any particular rules on the subject. All 
 the authorities agree that each case must 
 be decided on its own particular cir- 
 cumstances, and that general definitions 
 are calculated to perplex and mislead. 
 It is apparent that the word ' residence," 
 
 like that of domicil, is often used to 
 express diflcrent meanings according to 
 the subject-matter. In statutes relating 
 to taxation, settlements, right of suf- 
 frage, and qualification for office, it may 
 have a very different construction from 
 that which belongs to it in statutes re- 
 lating to attachments. In the latter 
 actual residence is contemplated as 
 distinguished from legal residence. The 
 word is to be construed in its popular 
 sense, according to the definition al- 
 ready given, as the act of abiding or 
 dwelling in a place for some continuance 
 of time. 
 
 " While, on the one hand, the cas- 
 ual or temporary sojourn of a person in 
 this State, whether on business or pleas- 
 ure, does not make him a, resident of 
 this State within the meaning of the 
 attachment laws, especially if his per- 
 sonal domicil be elsewhere ; so, on the 
 other hand, it is not essential he should 
 come into this State with the intention 
 to remain here permanently to consti- 
 tute him a resident." 
 
 The following language of Richard- 
 son, C. J., in Shattuck v. Maynard, 
 may also be quoted : "The word 're- 
 side ' is used in two senses, — the one 
 constructive, technical, legal ; the other 
 denoting the personal actual habitation 
 ) of individuals. When a person has a 
 fixed abode where he dwells with his 
 family, there can be no doubt as to the 
 place where he resides. The place of 
 his personal and legal residence are the 
 same. So when a person has no per- 
 manent habitation or family, but dwells 
 in different places, as he happens to 
 find employment, there can be no doubt 
 as to the place where he resides. He 
 must be considered as residing where he 
 
 121 
 
§ 74.] THE LAW OF DOMICIL. [CHAP. III. 
 
 A person may have his residence in one place and his dom- 
 icil in another. Again, while he can have but one domicil 
 he may have two or more residences ; and, on the other hand, 
 he may be without an actual residence, although he cannot be 
 without a domicil. 
 
 § 74. Id. Attempts to define Residence. — Various attempts 
 have been made to define residence. Dicey ^ defines it " as 
 habitual physical presence in a place or country," qualifying 
 the word "habitual" by saying that by it is "meant, not 
 presence in a place or country for a length of time, but 
 presence there for the greater part of the time, be it long 
 or short, which the person using the term ' residence ' con- 
 templates." In Frost et al. v. Brisbin,^ Nelson, C. J., says : 
 " There must be a settled, fixed abode, an intent to remain 
 permanently at least for a time, for business or other pur- 
 poses, to constitute a residence within the legal meaning 
 of that term ; " and this he intimates is actual residence as 
 contradistinguished from domicil. In Morgan v. Nunes,^ it is 
 said : " Eesidence implies an established abode, fixed perma- 
 nently for a time for business or other purposes, although 
 there may be an intent in the future, at some time or other, 
 to return to the original domicil." In Long v. Ryan,* Sta- 
 ples, J., says : " According to the most approved writers and 
 lexicographers residence is defined to be the place of abode, 
 a dwelling or habitation, the act of abiding or dwelling in a 
 place for some continuance of time. To reside in a place is 
 to abide, to sojourn, to dwell there permanently or for a length 
 of time. It is to have a permanent abode for the time being, 
 as contradistinguished from a mere temporary locality of ex- 
 istence, . . . the act of abiding or dwelling in a place for 
 
 actually and personally resides. But ' Dom. p. 76. See also p. 43 and note, 
 some persons have permanent habita- In Reglna v. Stapleton, 1 Ell. & Bl. 766, 
 tions where their families constantly Erie, J. (p. 770) doubts whether a gen- 
 dwell, yet pass a great portion of their eial definition of residence can be found 
 time in other places. Such persons have anywhere, and adds : " It has been a 
 a legal residence with their families and desideratum to me for many years, and 
 a personal residence in other places ; I never could find or frame a definition 
 the word ' reside ' may, with respect to satisfactory to my mind." 
 them, denote either the personal or the 2 19 Wend. 11. 
 legal residence. The books furnish am- ^ 54 Miss. 308. 
 pie illustrations of this distinction." * 30 Gratt. 718; supra, § 73, note 1. 
 
 122 
 
§75.] 
 
 DEFINITIONS, 
 
 [chap. III. 
 
 some continuance of time." In Tazewell v. Darenport,^ it is 
 said : " A resident of a place is one who dwells in that place 
 for some continuance of time for business or other purpose." 
 
 § 75. Id. " Residence " in American ^legislation generally, 
 although not always, means "Domlcil."-r-- The word "domicil," 
 although so often used and commented upon by our courts, is 
 rarely to be met with in our constitutions or legislative enact- 
 ments. " Residence " is the favorite term employed by the 
 American legislator to express the connection between person 
 and place, its exact signification being left to construction, 
 to be determined from the context and the apparent object 
 sought to be attained by the enactment.^ It is to be regret- 
 ted that these lights are often very feeble, and that not a 
 little confusion has been introduced into our jurisprudence by 
 the different views held by different courts with regard to 
 the exact force of this and similar words when applied to sub- 
 stantially the same subject-matter. " Residence " when used in 
 statutes is generally construed to mean " domicil." ^ In fact, 
 
 6 40 111. 197. 
 
 ' See Long v. Kyan, supra, § 73, 
 note 1. 
 
 2 Following are a few of the many 
 cases in which residence (usually statu- 
 tory) has heen held substantially or 
 nearly equiralent to domiciL For con- 
 venience the general nature of each 
 ca.se is briefly stated in parentheses : 
 Boucicault v. Wood (Residence under 
 the Copyright Laws), 2 Biss. 34 ; Doyle 
 V. Clark (Judicial Citizenship), 1 Flip. 
 536 ; Abington v. North Bridgewater 
 (Settlement), 23 Pick. 170 ; Thomdike 
 V. Boston (Tax), 1 Mete. 242 ; Blan- 
 chard v. Steams (Voting), 5 id. 298 ; 
 Opinion of the Judges (Voting), id. 587; 
 McDaniel v. King (Insolvency) 5 Cush. 
 469 ; Collester v. Hailey (Limitation), 
 6 Gray, 517 ; Langdon v. Doud (Limi- 
 tation), 6 Allen, 423 ; Shaw v. Shaw 
 (Divorce), 98 Mass. 158 ; Halletu. Bas- 
 sett (Limitation), 100 id. 167; State v. 
 Aldrich, 14 R. I. 171 ; Kennedy v. 
 Ryal (Jurisdiction to grant Adminis- 
 tration), 67 N. Y. 379; Crawford v. 
 Wilson (Voting), 4 Barb. 504 ; Isham 
 V. Gibbons (Probate) 1 Bradf. (N. Y, 
 
 Surrogate) 69 ; Matter of Hawley (Nat- 
 uralization), 1 Daly (N. Y. C. P.'),' 531 ; 
 Matter of Scott (Id.), id. 534 ; Matter 
 of Bye (Id.), 2 id. 525 ; Cadwallader v. 
 Howell & Moore (Voting), 3 Harr. (N. 
 J.) 138; Brundred v. Del Hoyo (Attach- 
 ment), Spencer (N. J. ), 328 ; Chase v. 
 Miller (Voting), 41 Pa. St. 403 ; Fry's 
 Election Case, 71 id. 302 ; Reed's Ap- 
 peal (Attachment), id. 378 ; McDaniel's 
 Case (Voting), 3 Pa. L. J. 315 (2 Clark, 
 82) ; Casey's Case (Insolvency), 1 Ashm. 
 126 ; Malone v. Lindley (Attachment), 
 1 Phila. 192 ; Taylor v. Reading (Vot- 
 ing), 4 Brews. 439 ; Dauplin Co. v. 
 Banks (Taxation), 1 Pears. 40 ; Tyler 
 V. Murray (Jurisdiction), 57 Md. 418 ; 
 Matter of Afflick's Estate (Jurisdiction 
 to appoint Guardian), 3 MacArth. 95 ; 
 Eo)3erts v. Cannon (Voting), 4 Dev. & 
 B. 256; State v. Grizzard (Id.), 89 
 N. C. 115; Dennis v. State (Id.), 17 
 Fla. 389 ; Talmadge's Adm'r v. Tal- 
 madge (Homestead), 66 Ala^. 199 ; Dale 
 V. Irwin (Voting), 78 111. 160 ; Cam]!- 
 bell 11. White (Limitation), 22 Mich. 
 178 ; Hall v. Hall (Divorce), 25 Wis. 
 600 ; Kellogg v. Supervisors (Taxation), 
 
 123 
 
§75.] 
 
 THE LAW OF DOMICIL. 
 
 [chap. III. 
 
 the great bulk of the cases of domicil reported in the Ameri- 
 can books are cases of statutory residence. This is especially 
 true with regard to the subjects of voting, eligibility to office, 
 
 42 id. 97 ; State v. Dodge (Settlement), 
 56 id. 79 ; Hinds v. Hinds (Divorce), 1 
 Iowa, 36 ; Church v. Grossman (Juris- 
 diction), 49 id. 447 ; Bradley v. Fraser 
 (Id.), 54 id. 289 ; Chariton County v. 
 Moberly (Attachment), 59 Mo. 238 ; 
 Stratton v. Brighara (Id.), 2 Sneed, 
 420 ; Venable v. Paulding (Limitation), 
 19 Miu. 488. 
 
 In Abington v. North Bridgewater 
 (Pauper Settlement), Shaw, C. J., says 
 (p. 1 76) ; "In the several provincial stat- 
 utes of 1692, 1701, and 1767 npon this 
 subject [settlement] the terms ' com- 
 ing to sojourn or dwell,' ' being an in- 
 habitant, ' ' residing and continuing one's 
 residence,' ' coming to reside and dwell, ' 
 are frequently and variously used, and 
 we think they are used indiscriminately 
 and all mean the same thing, namely, 
 to designate the place of a person's 
 domiciL This is defined in the Con- 
 stitution, (i. 1, § 1, for another purpose, 
 to be the place ' where one dwelleth or 
 hath his home.' " The same learned 
 judge says, in McDaniel ». King (Juris- 
 diction in Insolvency Proceedings), p. 
 473 : " It has been argued, in behalf of 
 the respondents, that residence is some- 
 thing different from, and something less 
 than, domicil. If this be so under some 
 circumstances, and in connection with a 
 particular subject, or particular words, 
 which may tend to fix its meaning 
 (Harvard College v. Gore, 5 Pick. 370), 
 yet, in general, residence and domicil are 
 regarded as nearly equivalent, and there 
 seems to be no reason for making the 
 distinction precisely in the present case." 
 In the opinion of the judges of the Su- 
 preme Court of Massachusetts rendered 
 to the Legislature of that State upon 
 the right of college students to vote, 
 they say (5 Mete. 588) : "By the Con- 
 stitution it is declared that to remove 
 all doubts concerning the meaning of 
 the word 'inhabitant,' eveiy person 
 shall be considered an inhabitant, for 
 the purpose of electing and being elected 
 
 124 
 
 into any office or place within this 
 State, in that town, district, or planta- 
 tion where he dwelleth or hath his 
 home. In the third article of the 
 amendments of the Constitution, made 
 by the Convention of 1820, the qualifi- 
 cation of inhabitancy is somewhat dif- 
 ferently expressed. The right of voting 
 is conferred on the citizen who has re- 
 sided within this Commonwealth, and 
 who has resided within the town or 
 district, &c. "We consider these de- 
 scriptions, though differing in terms, as 
 identical in meaning, and that ' inhabi- 
 tant ' mentioned in the original Consti- 
 tution, and 'one who has resided,' as 
 expressed in the amendments, designate 
 the same person. And both of these 
 expressions, as used in the Constitution 
 and amendment, are equivalent to the 
 familiar term 'domicil,' and therefore the 
 right of voting is confined to the place 
 where one has his domicil, his home, or 
 place of abode." In Shaw v. Shaw 
 (Jurisdiction in Divorce), Foster, J., 
 says (p. 159) : "The words 'to live' and 
 ' to reside ' in these provisions [relating 
 to jurisdiction to decree divorces] are ob- 
 viously synonymous, and both relate to 
 the domicil of the party, or the place 
 where he is deemed in law to reside, 
 which is not always the place of one's 
 present actual abode. To live, to reside, 
 to dwell, to have one's home or domicil, 
 are usually, in our statutes, equivalent 
 and convertible terms." " The word 
 'residence' (fixed residence, I mean) is 
 generally used as tantamount to domicil, 
 though I am not prepared to say whether 
 they are or are not in all respects con- 
 vertible terms." Cadwallader v. Howell 
 & Moore (supra), per Dayton, J., p. 
 144. See also Bigelow, C. J., in 
 Langdon v. Doud, 6 Allen, 423, sujara, 
 § 50, note 1. In Hinds v. Hinds, su- 
 pra, Wright, C. J., after an elaborate 
 review of the cases concludes that resi- 
 dence within the divorce laws of Iowa 
 means legal residence or domicil ; and in 
 
§76.] 
 
 DEFINITIONS. 
 
 [chap. III. 
 
 taxation, jurisdiction in divorce, probate and administration, 
 etc. With respect to these subjects there is substantial una- 
 nimity in this country in holding statutory residence to mean 
 domiciO In cases of pauper settlement, limitations, etc., there 
 is much conflict of opinion, and in those of attachment the 
 weight of authority is the other way." 
 
 § 76. Domicil and Inhabitancy. — Habitancy or inhabitancy 
 is another word which is also often construed to mean domi- 
 cil. But this depends much upon the connection in which, 
 and the purpose for which, the word is used. In some cases 
 it has been held to mean less than domicil, and in others 
 more ; implying, in addition to what is included in that term, 
 citizenship and municipal relations.^ But in general, statu- 
 tory inhabitancy is construed to be substantially equivalent to 
 domicil ; ^ at least, in the language of Shaw, C. J., in Otis v. 
 Boston : " Most of the rules of the law of domicil apply to the 
 question, where one is an inhabitant." 
 
 Ishami). Gibbons, su2>ra, Bradford, Sur- 
 rogate, after a similar review, concludes 
 that the terms "resident" and "in- 
 habitant," as used in the New York 
 statutes relating to testamentary mat- 
 ters, have reference to domicil. 
 
 In Lambe v. Smythe, 15 Mees. & W. 
 433, speaking with reference to "resi- 
 dence" within the St. 3 & 4 Will. IV. 
 c. 42, § 8, which requires the residences 
 of persons named in pleas of abatement 
 to be stated on affidavit, Parke, B., said : 
 "It means domicil or home," probably 
 using the term "domicil," however, in 
 a broader sense than that in which it 
 is generally used in English jurispru- 
 dence. 
 
 But that residence and domicil are 
 not always equivalent terms, see the 
 following among other cases : Warren 
 V. Thomaston (Settlement), 43 Me. 406; 
 Korth Yarmouth «. West Gardiner (Id. ), 
 58 id. 207 ; Matter of Thompson (At- 
 tachment), 1 Wend. 43 ; Matter of 
 Wrigley (Insolvency), 8 Wend. 134 ; 
 Frost V. Brisbin (Imprisonment for 
 Debt), 19 id. 11 ; Haggart v. Morgan 
 (Attachment), 4 Sandf. 198; affirmed, 5 
 N. Y. 422 ; Bartlett v. City of New 
 
 York (Tax), 5 Sandf. 44 ; Crawford v. 
 Wilson (Voting), 4 Barb. 504 ; Douglas 
 V. Mayor of New York (Tax), 2 Duer, 
 110 ; Mayor of New York v. Genet 
 (Attachment), 4 Hun, 487 ; Baldwin v. 
 Flagg (Id.), 43 N. J. L. 495 ; Eiaewick 
 V. Davis (Id. ), 19 Md. 82 ; Dorsey v. 
 Kyle (Id.), 30 id. 512 ; Long «. Kyan, 
 (Id.), 30 Gratt. 718 ; Tazewell v. Daven- 
 port (Tax), 41 111. 197 ; Johnson v. 
 Smith (Limitation), 43 Mo. 499 ; Fos- 
 ter V. Eaton & Hall (Attachment), 4 
 Humph. 346 ; Stratton v. Brigham 
 (Id.), 2 Sneed, 420 ; Alston v. New- 
 comer (Id.), 42 Miss. 186; Morgan v. 
 Nuues (Id.), 54 id. 308; Weaver v. 
 Norwood (Administration), 59 id. 665. 
 * On these subjects see supra, ch. 2. 
 
 1 Harvard College v. Gore (Probate 
 Jurisdiction), 5 Pick. 370 ; Lyman v. 
 Fiske (Tax), 17 id. 231 ; State v. Ross 
 (Tax), 3 Zab. 517, 520, per Greene, 
 C.J. 
 
 2 Littlefield D. Brooks (Tax), 50 Me. 
 475 ; Abington v. North Bridgewater 
 (Settlement), 23 Pick. 170; see remarks 
 of Shaw, C. J., mpra, § 75, note 2 ; 
 Thorndike v. Boston (Tax), 1 Met. 
 242 ; Blanchard v. Steams (Voting), 
 
 125 
 
§77.] 
 
 THE LAW OF DOMICIL. 
 
 [chap. III. 
 
 § 77. DomicU, National, quasi-National, and Municipal. — What- 
 ever may be the true definition of domicil, it expresses, at all 
 
 5 id. 298 ; Opinion of Judges (Id.), 
 id. 587, mpra, § 75, note 2 ; Otis v. 
 Boston (Tax), 12 Cush. 44 ; Bulkley 
 V. Williamstown (Tax), 3 Gray, 493; 
 Collester i). Hailey (Limitation), 6 
 Gray, 517 ; Langdon v. Doud (Id.), 6 
 Allen, 423 ; Borland v. Boston (Tax), 
 132 Mass. 89; Kyalw. Kennedy (Jurisdic- 
 tion to grant Administration), 40 N. Y. 
 Super. Ct. 347 ; affirmed, 67 N. Y. 379 ; 
 Crawford v. Wilson (Voting), 4 Barb. 
 504 ; Isham v. Gibbons (Probate), 1 
 Bradf. 69 ; State v. Ross, siipra ; Fry's 
 Election Case, 71 Pa. St. 302 ; Dennis 
 V. State (Voting), 17 Fla. 389 ; Kellogg 
 V. Supervisors (Tax), 42 Wis. 97. 
 
 In several cases inhabitancy has been 
 said to mean something less than domicil . 
 Brundred v. Del Hoyo (Attachment), 
 Spencer (N. J.), 328 ; Dale v. Irwin 
 (Voting), 78 111. 160; Briggs v. Ro- 
 chester (Tax), 16 Gray, 337; but the 
 latter case was overruled in Borland v. 
 Boston, supra,, and its doctrine was 
 expressly repudiated in the Wisconsin 
 case of Kellogg v. Supervisors, swpra. 
 In Harvard College b. Gore, Parker, 
 C. J., says (p. 377) : "The term 'in- 
 habitant ' as used in our laws and in 
 this statute means something more than 
 ^ person having a domicil. It imports 
 citizenship and municipal relations, 
 whereas a man may have a domicil in 
 a country to which he is alien, and 
 where he has no political relations. As 
 if an American citizen should go to 
 London or Paris with an intention to 
 remain there in business for the rest 
 of his life, or if an English or French 
 subject should come here with the same 
 intention, they would respectively ac- 
 quire a domicil in the counti-y in which 
 they should so live, but would have no 
 political relation except that of local 
 allegiance to such country. An in- 
 habitant, by our constitution and laws, 
 is one who being a citizen dwells or bas 
 his home in some particular town, where 
 he has municipal rights and duties, and 
 is subject to particular burdens." And 
 
 126 
 
 further on in the same opinion he says 
 (p. 379) : "The constitutional deiini- 
 tion of habitancy is the place where a 
 man dwells or has his home ; in other 
 words, his domicil." 
 
 In Lyman v. Fiske (17 Pick. 231, 
 234), Shaw, C. J., says : " In some re- 
 spects, perhaps, there is a distinction 
 between habitancy and domicil, as 
 pointed out and explained in the case 
 of Harvard College v. Gore, 5 Pick. 377, 
 the former being held to include citizen- 
 ship and municipal relations. But this 
 distinction is believed to be of no im- 
 portance in the present case; because 
 all the facts and circumstances, which 
 would tend to fix the domicil, would 
 alike tend to establish the habitancy. 
 It is difficult to give an exact defini- 
 tion of habitancy. In general terms, 
 one may be designated as an inhabitant 
 of that place, which constitutes the 
 principal seat of his residence, of his 
 business, pursuits, connections, attach- 
 meiits, and of his political and muni- 
 cipal relations. It is manifest, there- 
 fore, that it embraces the fact of 
 residence at a place, with the intent 
 to regard it and make it his home." 
 
 The whole subject was carefully and 
 fully reviewed in Borland v. Boston, 
 132 Mass. 89, as follows (per Lord, J., 
 p. 93) : " There are certain words which 
 have fixed and definite significations. 
 ' Domicil ' is one such word ; and for 
 the ordinary purposes of citizenship, 
 there are rules of general, if not uni- 
 versal acceptation, applicable to it. 
 'Citizenship,' 'habitancy,' and 'resi- 
 dence' are severally words which may 
 in the particular case mean precisely 
 the same as ' domicil,' but very fre- 
 quently they may have other and incon- 
 sistent meanings ; and while in one use 
 of language the expressions ' a change of 
 domicil, of citizenship, of habitancy, 
 of residence,' are necessarily identical 
 or synonymous, in a different use of 
 language they import different ideas. 
 The statutes of this Commonwealth 
 
§77.] 
 
 DEFINITIONS. 
 
 [chap. hi. 
 
 events, a connection between person and place. But the term 
 " place" is an indefinite one, and may be used to denote a larger 
 
 render liable to taxatiou in a particular 
 municipality those who are inhabitants 
 of that municipality on the first day of 
 May of the year. Gen. Sts. c. 11, 
 §§ 6, 12. It becomes important, there- 
 fore, to determine who are inhabitants, 
 and what constitutes habitancy. 
 
 " The only case adjudged within this 
 Commonwealth, in which the word of 
 the statute, 'inhabitsint,' is construed 
 to mean something else than 'being 
 domiciled in," is Briggs v. Rochester, 
 16 Gray, 337, although that decision 
 is subsequently recognized in Colton v. 
 Longmeadow, 12 Allen, 598. In Briggs 
 V. Rochester, Mr. Justice Metcalf, in 
 speaking of the word 'inhabitant,' says 
 that it has not the meaning of the 
 word ' domioil ' ' in its strictly tech- 
 nical sense, and with its legal in- 
 cidents.' He says also that the word 
 ' domicil ' is not in the Constitution nor 
 in the statutes of the Commonwealth. 
 So far as the Constitution is concerned, 
 this is correct ; but he had evidently 
 overlooked a statute of ten years before, 
 in which the word ' domicil ' was used, 
 and upon the very subject of taxation, 
 in a proviso in these words : ' Provided 
 that nothing herein contained shall ex- 
 empt said person from his liability to 
 the payment of any tax legally assessed 
 upon him in the town of his legal dom- 
 icil." St. 1850, c. 276 ; Gen. Sts. c. 11, 
 § 7. This language is a strong legisla- 
 tive assertion that domicil is the test 
 of liability to taxation ; and in an 
 opinion given by the justices of this 
 court to the House of Eepresentatives in 
 1843, in reference to a student's right 
 to vote in the municipality in which he 
 is residing for the purposes of educa- 
 tion, it was said, ' And as liability to 
 taxation for personal property depends 
 on domicil.' 5 Met. 587,590. 
 
 " Nor do we think that the opinion in 
 Briggs V. Rochester gives the true force 
 as used in the Constitution of the word 
 ' inhabitant ; ' for we cannot doubt that 
 for the purposes of taxation the word 
 
 'inhabitant' must be used in the same 
 sense as when used in reference to elect- 
 ing and being elected to office; especially 
 as at that time the payment of a tax 
 duly assessed was one of the qualifica- 
 tions of an elector ; and more especially 
 as the Constitution itself professes to 
 give its definition of 'inhabitant' for 
 the purpose of removing all doubt as to 
 its meaning. Its language is, ' And to 
 remove all doubts concerning the mean- 
 ing of the word "inhabitant" in this 
 Constitution, every person shall be con- 
 sidered as an inhabitant, for the purpose 
 of electing and being elected into any 
 office or place within this State, in that 
 town, district, or plantation where he 
 dwelleth, or hath his home.' Const. 
 Mass. c. 1, § 2, art. 2. 
 
 " Nor do we see how the construc- 
 tion given to the statute is consistent 
 with the result at which the court ar- 
 rived. The learned judge says : ' In the 
 statute on which this case depends, we 
 are of the opinion that the words 
 " where he shall be an inhabitant on the 
 first day of May " mean where he .shall 
 have his home on that day.' It is 
 therefore clear that the learned judge 
 does not give to the word ' inhabitant ' 
 the meaning which the construction of 
 the statute before referred to authorizes 
 him to give, but he does give the exact 
 definition of the Constitution, to wit, 
 ' where he dwelleth, or hath his home ; ' 
 for these words have not in the Consti- 
 tution two meanings, but the single sig- 
 nification given to them by the learned 
 judge, ' his home,' — the exact, strict, 
 technical definition of domicil. 
 
 " We cannot construe the statute to 
 mean anything else than ' being domi- 
 ciled in.' A man need not be a, resi- 
 dent anywhere. He must have a domicil. 
 He cannot abandon, surrender, or lose 
 his domicil until another is acquired. 
 A cosmopolite, or a wanderer up and 
 down the earth, has no residence, though 
 he must have a domicil. It surely was 
 not the purpose of the legislature to al- 
 
 127 
 
§77.] 
 
 THE LAW OP DOMICIL. 
 
 [chap. III. 
 
 or a smaller division of territory. There was no difficulty what- 
 ever upon this point under the Eoman law, since, generally 
 
 low a man to abandon his home, go into 
 another State, and then return to this 
 Commonwealth, reside in different towns, 
 hoard in different houses, public or pri- 
 vate, with no intention of making any 
 place a place of residence or home, and 
 thus avoid taxation. Such a construc- 
 tion of the law would create at once a, 
 large migratory population. 
 
 "Although we have said that the 
 case of Briggs v. Rochester has been 
 recognized in Colton v. Longmeadow, 
 12 Allen, 598, yet we ought to state 
 that the decision in Colton v. Long- 
 meadow was placed upon entirely differ- 
 ent grounds. It was there held that 
 the plaintiff had lost his domicil in 
 Massachusetts because he had actually 
 left the Commonwealth, and was actu- 
 ally in itinere to his new domicil, which 
 he had left this Commonwealth for the 
 purpose of obtaining, and which in fact 
 he did obtain. If it should be deemed 
 sound to hold that a person who be- 
 fore the first of May, with an intention 
 in good faith to leave this State as a 
 residence and to adopt as his home or 
 domicil another place, is in good faith 
 and with reasonable diligence pursuing 
 his way to that place, is not taxable 
 here upon the first of May, the doctrine 
 should be limited strictly to cases fall- 
 ing within these facts. And both of 
 the cases cited, Briggs i). Rochester 
 and Colton v. Longmeadow, would fall 
 within the rule. In each of those cases 
 the plaintiff had determined, before 
 starting upon his removal, not only 
 upon his removal, but upon his exact 
 destination, and in fact established him- 
 self, according to his purpose, without 
 delay, and within a reasonable time. 
 
 "We think, however, that the sounder 
 and wiser rule is to make taxation de- 
 pendent upon domicil. Perhaps the 
 most important reason for this rule is 
 that it makes the standard certain. 
 Another reason is that it is according 
 to the general views and traditions of 
 our people. One cannot but be im- 
 128 
 
 pressed by certain peculiarities in Briggs 
 V. Rochester. The bill of exceptions in 
 that case begins thus : ' It was ad- 
 mitted by both parties and so presented 
 to the jury, that the only question at 
 issue was the domicil of the plaintiff on 
 the first of May, 1858 ; and that if he 
 was then an inhabitant of the defend- 
 ant town, the tax was rightly imposed ; 
 but that if he was not on that day an 
 inhabitant of said town, he was not 
 then rightly taxable and taxed therein.' 
 Nothing can be more clear than that all 
 parties understood, and the case was 
 tried upon the understanding, that 
 domicil and inhabitancy meant the 
 same thing ; otherwise, domicil, instead 
 of being 'the only question at issue,' 
 would not have been in issue at aU. 
 And the judge in giving his opinion 
 says that, if domicil in its strictly tech- 
 nical sense and with its legal incidents 
 was the controlling fact, the plaintiff 
 was rightly taxed in Rochester. 
 
 " Another noticeable fact in Briggs 
 V. Rochester is this, that if the tax-payer 
 in the pursuit of his purpose is beyond 
 the line of the State before the first of 
 May, he is not liable to taxation in the 
 State; but if by detention he does not 
 cross the line of the State till the first 
 of May, he is taxable here. "We cannot 
 adopt a rule which shall make liability 
 to taxation depend upon proximity to a 
 State line. 
 
 " We have said that we prefer the test 
 of domicil, because of its certainty and 
 because of its conformity to the views 
 and traditions of our people, and, we 
 may add, more in accordance with the 
 various adjudications upon the subject 
 in this State, and more in accord with 
 the general legal and judicial current of 
 thought. It is true that, as said by 
 Mr. Justice Metcalf, ' it has repeatedly 
 been said by this and other courts, that 
 the terras "domicil," "inhabitancy," 
 and "residence" have not precisely the 
 same meaning.' But it will be found 
 upon examination that these three words 
 
§77.] 
 
 DEFINITIONS. 
 
 [chap. III. 
 
 speaking, but one unit of place was recognized,— the urban 
 community, — and to this single unit the relation domicilium 
 
 are often used as substantially signify, 
 ing the same thing. 
 
 "In one of the earliest cases, Har- 
 vard College V. Gore, 5 Pick. 370, 377, 
 Chief Justice Parker, in defining the 
 word ' inhabitant ' as used in the laws, 
 defined it as one which imported not 
 only domicil, but something more than 
 domicil [quoting as above from Har- 
 vard College V. Gtore], There are other 
 passages in the same opinion which, 
 although used alio intuitu, yet clearly 
 indicate the current of judicial thought ; 
 for example, 'The term "inhabitant" 
 imports many privileges and duties 
 which aliens cannot enjoy or be subject 
 to ' (p. 373) ; ' does not fix his domicil or 
 habitancy ' (p. 372) ; 'apretended change 
 of domicil to avoid his taxes ' (p. 378). 
 There are other similar expressions run- 
 ning through the whole opinion. 
 
 " In Lyman v. Fiske, 17 Pick. 231, 
 the views of Chief Justice Parker in 
 Harvard College v. Gore were considered 
 by Chief Justice Shaw ; and although 
 expressing no dissent from the views of 
 Chief Justice Parker, it is evident that 
 in his apprehension the word 'inhabi- 
 tant ' as used in the Constitution im- 
 ported one domiciled, and he did not 
 deem it important to consider whether 
 it imported anything else in relation to 
 political rights, duties, and liabilities 
 than the word ' domiciled ' would im- 
 port. But as the views of that magis- 
 trate are never to be slightly regarded, 
 and as he gave the opinion in both the 
 cases decided by this court, cited by 
 Mr. Justice Metcalf, as settling that the 
 words 'domicil,' 'habitancy,' and 'resi- 
 dence' have not precisely the same 
 meaning, we cite from his opinion to 
 show what his views were of ' domicil ' 
 and ' habitancy ' [quoting as above from 
 Lyman v. Fiske]. 
 
 "It is entirely clear that in his 
 opinion, so far as relates to municipal 
 rights, privileges, and duties, there is 
 substantially no distinction between 
 'domicil' and 'habitancy.' And, as • 
 
 9 
 
 fm-ther illustrating the views of that 
 magistrate and the general sentiment of 
 our people as to the use of such lan- 
 guage in legislative enactments, we cite 
 his language in Abington v. North 
 Bridgewater, 23 Pick. 170, 176 : ' In 
 the several provincial statutes of 1692, 
 1701, and 1767, upon this subject, the 
 terms, "coming to sojourn or dwell," 
 "being an inhabitant," "residing and 
 continuing one's residence," "coming to 
 reside and dwell," are frequently and 
 variously used, and, we think, they are 
 used indiscriminately, and all mean the 
 same thing, namely, to designate the 
 place of a person's domicil. This is de- 
 fined in the Constitution, c. 1, § 2, for 
 another purpose, to be the place " where 
 one dweileth or has his home. " ' 
 
 " Authorities could be multiplied al- 
 most indefinitely in which it has been 
 held by this court that so far as it re- 
 lates to municipal rights, privileges, 
 powers, or duties, the word ' inhabitant ' 
 is, with the exceptions before referred 
 to, universally used as signifying pre- 
 cisely the same as one domiciled. See 
 Thorndike ■;;. Boston, 1 Met. 242, 245 ; 
 Sears v. Boston, 1 Met. 250, 252 ; 
 Blanohard v. Steams, 5 Met. 298, 304 ; 
 Otis V. Boston, 12 Cush. 44, 49 ; Bulk- 
 ley V. Williamstown, 3 Gray, 493, 
 494. 
 
 "As illustrative, however, of the 
 fact that domicil and habitancy are, for 
 the ordinary purposes of citizenship, 
 such as voting, liability to taxation, 
 and the like, identical, and that when 
 they are susceptible of different mean- 
 ings they are used alio intuitu, we cite 
 the language of Chief Justice Shaw in 
 Otis V. Boston, 12 Cush. 44, 49: 'Per- 
 haps this question has heretofore been 
 somewhat complicated, by going into the 
 niceties and peculiarities of the law of 
 domicil, taken in all its aspects ; and 
 there probably may be cases where the 
 law of domicil, connected with the sub- 
 ject of allegiance, and affecting one's 
 national character, in regard to amity, 
 
 129 
 
§77.] 
 
 THE LAW OF DOMICIL. 
 
 [chap. III. 
 
 always referred. But among modern civilized nations units of 
 place have been greatly multiplied, and differ in number and 
 kind in different countries. Although not absolutely the lar- 
 gest, yet the largest known to the law is the sovereign State 
 in its territorial aspect, while the smallest are the various 
 municipal divisions, such as town, township, ward, parish, etc. 
 Between these two extremes, and approaching more or less 
 nearly to one or the other, are numerous territorial divisions ; 
 some rising into quasi-aLntonomj, and others, instituted for 
 purely municipal purposes, nearly approaching the smallest. 
 It is evident that any of these various territorial divisions 
 
 hostility, and neutrality, is not appli- 
 cable to this subject. But as a man is 
 properly said to be an inhabitant where 
 he dwelleth and hath his home, and is 
 declared to be so by the Constitution, 
 for the purpose of voting and being 
 voted for ; and as one dwelleth and has 
 his home, as the name imports, where 
 he has his domicil, most of the rules of 
 the law of domicil apply to the question, 
 where one is an inhabitant.' 
 
 " A very strong case of retention of 
 domicil, while in itinere to a new one 
 which is subsequently reached, is Shaw 
 V. Shaw, 98 Mass. 158, in which the 
 court say that the rule of Colton v. 
 Longmeadow, which merely followed 
 Briggs D. Rochester, ' is such an excep- 
 tion to the ordinary rule of construction 
 as ought not to be extended.' 
 
 " Upon the whole, therefore, we can 
 have no doubt that the word ' inhabi- 
 tant,' as used in onr statutes when re- 
 ferring to liability to taxation, by an 
 overwhelming preponderance of author- 
 ity, means ' one domiciled.' While 
 there must be inherent diificulties in 
 the decisiveness of proofs of domicil, 
 the test itself is a certain one ; and in- 
 asmuch as every person by universal ac- 
 cord must have a domicil, either of 
 birth or acquired, and can have but one, 
 in the present state of society it would 
 seem that not only would less wrong be 
 (lone, but less inconvenience would be 
 experienced, by making domicil the 
 test of liability to taxation, than by the 
 
 130 
 
 attempt to fix some other necessarily 
 more doubtful criterion. 
 
 "Whether t"he cases of Briggs v. Ro- 
 chester and Colton v. Longmeadow 
 should be followed in cases presenting 
 precisely similar circumstances, the case 
 at bar does not require us to decide ; and 
 we reserve further expression of opinion 
 on that question until it shall become ne- 
 cessary for actual adjudication. If they 
 are to be deemed authority, they should 
 certainly be limited to the exact facts, 
 where a person before leaving this 
 Commonwealth has fixed upon a place 
 certain as his future home, and has 
 determined to abandon this Common- 
 wealth for the purpose of settling in 
 his new home, and is, upon the first 
 of May, without the Commonwealth, 
 in good faith and with reasonable de- 
 spatch actually upon his way to his new 
 Lome." 
 
 As the decided result of the eases it 
 may be stated that, at least where the 
 question of international citizenship does 
 notarise, " inhabitancy" and "domicil" 
 are substantially convertible terms. 
 
 Whether " residence " and "inhab- 
 itancy " are at all synonymous, and if 
 so, how far, has been mooted in some of 
 the cases. See Harvard College v. Gore, 
 sHpra ; Thorndike v. Boston, supra ; 
 Blanohard v. Steams, supra; Opinion 
 of Judges, supra ; Borland v. Bos- 
 ton, supra ; Roosevelt v. Kellogg, 20 
 Johns. 208 ; Matter of Wrigley, i 
 Wend. 602 and note ; s. c. on appeal, 
 
.§77.] 
 
 DEFINITIONS. 
 
 [chap. III. 
 
 may be the seat of a man's domicil or liome ; ^ so that while 
 his abode remains at one spot, the scope of the relation signi- 
 fied by the term " domicil," viewed with reference to different 
 purposes, may vary from the smallest to the largest unit of 
 place. The relation has been appropriately termed national 
 domicil when its seat is a country, and municipal or domes- 
 tic domicil when its seat is one of the smaller municipal 
 divisions.2 "We will use the term quasi-national when we 
 
 8 id. 134 ; Frost v. Brisbin, 19 id. 11 ; 
 Crawford v. Wilson, 4 Barb. 504 ; 
 Isham V. Gibbons, supra; State v. 
 Boss, supra ; Taaewell v. Davenport, 
 40 lU. 197 ; Dale v. Irwin, supra. 
 
 1 In the valuable note on the " In- 
 terpretation of ' Residence,' ' Inhabi- 
 tant,' etc., in Statutes" appended to 
 chapter 3, the learned editor of the 
 eighth edition of Story on the Conflict 
 of Laws falls into a manifest error in 
 saying (p. 58) that "in its technical 
 sense domicil is applicable only to a 
 country." The truth is, as we have 
 already seen, that "domicil" was, in its 
 origin in the Roman law, strictly a 
 municipal, and not an international in- 
 stitution ; and so it long continued, no 
 person being looked upon as domiciled 
 in the Roman Empire, but in this or 
 that particular urban territory. After 
 the dismemberment of that empire and 
 the disappearance of the principle of 
 race descent as the basis of personal law, 
 when occasion arose the mediaeval jur- 
 ists borrowed the principle of domicil, 
 first, probably for the solution of con- 
 flicts of local laws within the same 
 country, and afterwards extended the 
 same mode of solution to conflicts be- 
 tween difi'erent countries. Moreover, 
 about the same time, domicil was much 
 resorted to by the canonists to deter- 
 mine interparochial and interdiocesan 
 questions, and in modern times one has 
 only to examine the writings of con- 
 tinental jurists, particularly those of 
 France, to find that domicil is as much 
 a matter of purely municipal as of 
 international law. It is true that it 
 was first introduced into our jurispru- 
 
 dence in the form of national or quasi- 
 national domicil, but its constant ap- 
 plication, in all the States of the Union, 
 to various municipal subdivisions ren- 
 ders it impossible, entirely apart from 
 historical considerations, to maintain 
 that such application is not technical in 
 its character. The learned editor, how- 
 ever, relies for authority (p. 58 and p. 
 40, § 41 note) upon Dicey, whose work, 
 it must be remembered, is written ex- 
 clusively in point of view of the English 
 law, which alone of all systems of Euro- 
 pean jurisprudence does not recognize 
 municipal domicil. Says Pollock, C. B. 
 (/ft re Capdevielle, 2 Hurl. & Colt. 985, 
 1018), after remarking upon the entire 
 absence of all mention of domicil in the 
 older English law-books : " An English 
 subject is domiciled in every part of 
 England ; but that is not so in foreign 
 countries where the law of domicil pre- 
 vails. There a man is domiciled at the 
 particular part of the dominions where 
 he was bom {^), and there are certain 
 acts which he cannot perform unless at 
 his place of domicil." Besides, Dicey 
 uses the term "country" in the sense 
 of "a territory subject to one system 
 of law," which, as we have already 
 seen, supra, § 14, may be only a part of 
 a municipal subdivision. 
 
 ^ This distinction is brought out in 
 the learned note to Guier v. O'Daniel, 
 in Hare and Wallace's American Lead- 
 ing Cases, vol. i. p. 742. See also 
 Bouvier, L. Diet. verb. Dom. ; Wait's 
 Actions and Defences, vol. ii. ch. 59, 
 art. 1, §§ 3 and 4 ; Argument of Coun- 
 sel, In re Capdevielle, supra, p. 991 ; 
 Otis V. Boston, 12 Gush. 44 ; Wllbra- 
 
 131 
 
§ 77.] THE LAW OP DOMICIL. [CHAP. HI. 
 
 desire specially to speak of that domicil which has for its seat 
 a ^Masi-autonomous State, — such as the States of this Union, 
 or the various countries and colonies composing the realm of 
 Great Britain. This distinction is not known in England,^ 
 but is palpably recognized in many of the American cases, 
 even where it is not expressed in terms. It would, however, 
 be a mistake to suppose that these several phases of domicil 
 are distinct things ; for they do not differ otherwise than as a 
 part differs from its whole. Thus a man is said to have mu- 
 nicipal domicil when the town in which he has his home is 
 considered, and national domicil when the country in which 
 the town is situated is looked at. But the one includes the 
 other. A person who has a municipal domicil in a Massa- 
 chusetts town is also connected with the territorial division 
 known as the State of Massachusetts by the tie of quasi- 
 national domicil. And the converse is generally, although 
 not universally, true ; * namely, that a person who is connected 
 with a great division of territory by national or quasi-neitional 
 domicil also has a municipal domicil at some place within 
 that State or country. 
 
 ham V. Ludlow, 99 Mass. 587 ; School purpose of succession, evidently confas- 
 
 Directors v. James, 2 Watts & Serg. ing allegiance and domicil. 
 
 568 ; Stiatton v. Brigham, 2 Sneed, * An approach to municipal domieil 
 
 420 ; Bate v. Incisa, 59 Miss. 513. In is found in residence under the poor- 
 
 the last-named case, however, the court laws, but the English cases have never 
 
 appears to draw a distinction between recognized this as domicil. 
 
 national domicil and domicil for the * See infra, § 133. 
 
 132 
 
§ 79.] GENERAL RULES. [CHAP. IV. 
 
 CHAPTER IV. 
 
 GENERAL RULES. 
 
 § 78. It has been said that it is difficult, if not indeed 
 impossible, to lay down any general rules on the subject of 
 domicil. In a certain sense this is true ; for the determina- 
 tion of a person's domicil is so much a question of fact, and 
 so largely dependent upon the peculiar circumstances of each 
 particular case, that no one has yet succeeded in framing any 
 general body of rules which will without modification deter- 
 mine every question which may arise. Still, there are several 
 elementary principles which have been received by the British 
 and American, and indeed by almost all modern, jurists with 
 wellnigh axiomatic authority, and which, if properly appre- 
 ciated and constantly kept in view, will go very far toward 
 solving most questions. Indeed they are the groundwork 
 of the whole subject, and most of what has been said in the 
 text-books and decided cases is but in elaboration of them 
 and application of them to particular sets of circumstances. 
 The most important of them are : (1) Every person must 
 have a domicil somewhere ; (2) iVb person can at the same 
 time have more than one domicil; (3) Every person who is 
 sui juris and capable of controlling his personal movements 
 may change his domicil at pleasure ; (4) A change of domi- 
 cil is a question of act and intention (factum et animus). 
 The first three will be discussed here in the order in which 
 they have been stated, the last being reserved for succeeding 
 chapters. 
 
 1. Every Person must have a Domicil somewhere. 
 
 § 79. The Roman Law ana Modern Civilians. — The Roman 
 law, while adhering generally to this rule, admitted one ex- 
 ception. It declared that although it is a difficult thing, a 
 
 133 
 
§80.] 
 
 THE LAW OF DOMICIL. 
 
 [chap. IV. 
 
 person may be without a domicil when, a previous domicil 
 having been abandoned, he has gone in quest of a new one. 
 Ulpian says : " DifBcile est sine domicilio esse quemquam. Puto 
 autem et hoc procedere posse, si quis domicilio relicto naviget, 
 vel iter faciat, quserens quo se conferat atque ubi constituat ; 
 nam hunc puto sine domicilio esse." ' Savigny remarks ^ of 
 this exception that it is of little importance on account of the 
 generally short duration of the interval, but there are some 
 cases reported in the books in which it has lasted for years.^ 
 Many of the Modern Civilians* have followed the doctrine 
 of Ulpian. Donellus^ even includes in this category one 
 who has been driven from his native country by war or 
 other misfortunes, and is thus caused to wander in search 
 of a habitation. But in this he is not borne out by the 
 authorities. 
 
 § 80. Id. — Savigny mentions ^ two other exceptions : the 
 first is where " a person has for a long time made travelling 
 his occupation, without having any home as the permanent 
 centre of his affairs and to which he is wont regularly to 
 return. This case, too," he says, " is of little importance. 
 
 1 Dig. 50, 1. 1, 1. 27, § 2. 
 
 2 Savigny, System, etc. § 354 (Guth- 
 rie's trans, p. 107); and he adds (note c) : 
 "To this category belongs vei-y often 
 the ease of a hired servant, day-laborer, 
 or journeyman tradesman changing his 
 service or his work, when such a change 
 is accompanied by a change of resi- 
 dence." 
 
 8 H.g., Bell V. Kennedy, L. R. 1 
 Soh. App. 307. 
 
 1 Voet, Ad Pand. 1. 5, t. 1, no. 
 92 ; Donellus, Comm. de Jure Civili, 
 1. 10, c. 12, p. 979 ; Corvinus, Jur. 
 Rom. 1. 10, t. 39, pt. 2, p. 46. Gro- 
 tius insists upon the difficulty of being 
 without a domicil, and argues there- 
 fore : " Firmissima hsec est . conjee- 
 tnra, quod prius domiciliuni quod 
 habuit, plane extinctum sit ; unde prse- 
 sumendum est electum ab ipso aliud 
 domicilium." Opinion from Hol- 
 landsche Consultatien, vol. iii. p. 528, 
 quoted by Henry, Foreign Law, p. 198. 
 The Prussian AUgemeine Landreoht in 
 
 134 
 
 terms treats of a person without any 
 determinate domicil (Introd. § 25 ; see 
 Westlake, Priv. Int. L. 2d ed. p. 29); 
 while the Austrian Code apparently as- 
 sumes that a person may be without a 
 domicil (Gesetzbuch, § 34; see Westlake, 
 Priv. Int. L. 2ded. p. 30). 
 
 ' Ubi supra. The objection to this 
 extension of the doctrine of Ulpian is 
 that under the circumstances named 
 the absence from the old place of abode 
 is not voluntary, but compulsory ; and 
 moreover in most instances there exists 
 the intention of ultimate return as soon 
 as the Impelling cause of absence is re- 
 moved. In cases such as those referred 
 to by Donellus, the old domicil is, ac- 
 cording to almost all the authorities, 
 presumed to continue, at least until it 
 is shown that the person has surren- 
 dered his intention to return. See infra, 
 ch. 13. 
 
 ' System, etc. § 354 (Guthrie's trans, 
 p. 107). 
 
§81-J 
 
 GENERAL RULES. 
 
 [chap. IV, 
 
 because it seldom occurs." The second is " the case of vaga- 
 bonds or wanderers, who rove about without any settled 
 way of life, seeking their subsistence for the most part by 
 means uncertain and dangerous to the public welfare and 
 security." ^ 
 
 § 81. British and American Authorities. — But the British 
 and American cases of national and g'wasi-national domicil 
 assume as an elementary principle, from which many of the 
 other doctrines on the subject are deduced, that every person 
 must have a domicil somewhere.^ It would be indeed ex- 
 tremely inconvenient, and productive of the greatest confusion, 
 if a person were allowed to withdraw himself from subjection 
 to the laws of one place without at the same time subjecting 
 himself to the laws of any other place. He would, e. g., have 
 no peculiar /orwm in cases where /ortim depends upon domicil, 
 and there would be no general rule to determine his status 
 during life or the distribution of his personal estate after 
 death. In short, all the perplexities would arise which 
 
 2 Savigny adds (note d) : " It is 
 remarkable that in the sources of the 
 Roman law there is no special mention 
 of this class. Even the fugitive slaves 
 (errimcs, fugitivi), who are often men- 
 tioned, cannot he reckoned in it, since 
 these have, in the legal sense, a certain 
 domicil ; that, namely, of their masters. 
 The explanation of this remarkahle fact 
 is, that the persons who with us are 
 vagabonds (together with the greatest 
 part of our proletaires) were included by 
 the Romans in the slave class. Tho- 
 masius (De Vagabundo, §§ 79, 91, 112) 
 calls vagdbundus every one who has no 
 domieilium, and distinguishes him from 
 the wanderer of doubtful character, 
 quite contrary to the prevailing usage, 
 which regards these two expressions as 
 equivalent. No one will call the mer- 
 chant who has given up his domicil to 
 seek a new one or the respectable trav- 
 eller by profession, a vagabond." 
 
 1 Bell V. Kennedy, L. E. 1 Sch. 
 App. 307, perWestbury, 320 ; Udny v. 
 Udny, id. 441, per Hatherley, 447 ; 
 Chelmsford, 453, and Westbury, 457 ; 
 Woloott V. Botfield, Kay, 534; Des- 
 
 mare v. United States, 93 U. S. 605 ; 
 White V. Brown, 1 Wall. Jr. C. Ct. 217 ; 
 Church V. Rowell, 49 Me. 367 ; Oilman 
 V. Oilman, 52 id. 165 ; Thorndike v. 
 Boston, 1 Met. 242 ; Report of the 
 Judges, 5 id. 587 ; McDaniel v. King, 
 5 Gush. 469 ; Otis v. Boston, 12 id. 44 ; 
 Briggs V. Rochester, 16 Gray, 337 ; Wil- 
 son V. Terry, 11 Allen, 206 ; Shaw v. 
 Shaw, 98 Mass. 158 ; Borland v. Bos- 
 ton, 132 id. 89 ; Bank v. Balcom, 35 
 Conn. 351 ; Crawford v. Wilson, 4 Barb. 
 504; Brown v. Ashbough, 40 How. Pr. 
 260; Eyal v. Kennedy, 40 N. Y. Super. 
 Ct. 847; Matter of Bye, 2 Daly, 525; 
 Reed's Appeal, 71 Pa. St. 378; Hind- 
 man's Appeal, 85 id.. 466 ; State v. 
 Grizzard, 89 N. C. 115; Rue High, Ap- 
 pellant, 2 Dougl. (Mich.) 515; Kellogg 
 V. Oshkosh, 14 Wis. 623; Hall v. Hall, 25 
 id. 600; Kellogg v. Supervisors, 42 id. 
 97; Morgan v. Nunes, 54 Miss. 308; 
 Shepherd V. Cassiday, 20 Tex. 24; Cross 
 V. Everts, 28 id. 523. And see author- 
 ities cited, infra, § 86, note 1. For 
 purposes of succession, Dupuy v. Wurtz, 
 53 N. Y. 556; State i). Grizzard, supra ; 
 Von Hoffman v. Ward, 4 Eedf. 244. 
 
 135 
 
§ 82.] THE LAW OP DOMICIL. f CHAP. IV. 
 
 scientific jurists have sought to avert by the introduction of 
 the doctrine of domicil into private international law. There 
 are two ways of getting rid of the difficulty : (1) by assuming 
 that the old domicil, and therefore the subjection of the per- 
 son to its laws, continues until a new domicil is gained ; and 
 (2) by assuming that although the old domicil has ceased 
 immediately upon being quitted, yet the subjection, of the 
 person to its laws continues until a new domicil is gained. 
 The latter is the doctrine of the Civilians according to 
 Savigny,^ and the former that of the British and American 
 authorities. Theoretically there is a difference, yet in prac- 
 tice the result is the same ; for in either case the person is 
 subject to the laws of his prior domicil. 
 
 § 82. Id. — According to the British and American authori- 
 ties every person receives at birth a domicil of origin, which 
 continues not only until it is abandoned but also until an 
 acquired domicil or domicil of choice is substituted for it.^ 
 This in its turn, according to the American authorities, con- 
 tinues until a third domicil is acquired, and so on throughout 
 life, each successive domicil adhering until it gives place to 
 another .2 The late case of Udny v. Udny ^ in the House of 
 Lords established a doctrine different from that held by the 
 American authorities concerning the adherence of acquired 
 domicil. It was there held that when a person has quitted 
 an acquired domicil animo non revertendi, and is either in 
 transitu to a new domicil or quoerens quo se conferat, his 
 last-acquired domicil does not adhere to him, but instantly 
 his domicil of origin reverts in order to prevent him from 
 being without domicil. But so far as concerns the integrity 
 of the general principle which we are discussing, it matters 
 not which view be accepted as correct; for whether an ac- 
 quired domicil adhere until a new domicil is acquired, or 
 the domicil of origin spring out of abeyance to fill up the 
 gap between two acquired domicils, the result is the same, — 
 that a person is never, in contemplation of law, without a 
 domicil somewhere. 
 
 2 System, etc. § 359 (Guthrie's trans. " Infra, §§ 113, 201. 
 P- 130). 8 L. R. 1 Sch. App. 441; and infra, 
 
 1 Infra, § 114. § 192 et seq. 
 
 136 
 
§ 83.-] GENERAL RULES; [CHAP, IV. 
 
 § 83. Id. Hioks V. Skinner. — The universal application of 
 this principle to cases of national and quasi-national domi- 
 cil has, it is believed, never been denied by any British or 
 American authority, except in the case of Hicks v. Skinner.' 
 In that case Reade, J., declared it to be "well settled that 
 one may abandon his domicil of origin with the design of 
 acquiring no other ; and then until he acquire another he is 
 without domicil except the domicil of actual residence." It 
 must be confessed that the phrase "domicil of actual resi- 
 dence " is a new one in our law and rather obscure ; ^ but the 
 meaning seems to be that when a domicil of origin has been 
 quitted, anirno non revertendi, it is thereby extinguished and 
 the person is subject to no law as his personal law save that 
 of the place where he happens temporarily to be, — a doctrine 
 entirely in conflict with all ■ authority, British, American, and 
 Continental. But the language of the judge throughout is 
 very loose, wholly obiter, and, as he himself admits, used 
 without the sanction of his brethren. The case, therefore, 
 cannot be looked upon as shaking the general principle. In 
 the subsequent case, in the same court, of State v. Grizzard,^ 
 Smith, C. J., says : " Domicil is a legal word, and differs [from 
 residence] in one respect, and perhaps in others, in that it is 
 never lost until a new one is acquired, while a person may 
 cease to reside in one place and have no fixed habitation 
 elsewhere. This rule as to domicil is based upon the neces- 
 
 1 72 N. C. 1. Eeade, J., relies upon quired a domicil elsewhere, might he 
 
 Savigny and Wharton (Confl. of L. §78); without any. But whether this would 
 
 but the latter does not hold the view be recognized as a valid principle by 
 
 that a person may be without domicil. the courts of other States or foreign 
 
 A further exception to the statement countries, may well be doubted, 
 in the text may perhaps be made of sev- ^ It is not even equivalent to the 
 
 eral Louisiana cases, viz. : State v. Poy- phrase of the Civilians, — domicilium 
 
 dras, 9 La. An. 167; Black v. Nelson, habitationis, — by which they mean ac- 
 
 29 id. 245; Evans i). Payne, 30 id. 498; quired domicil as distinguished from 
 
 Walker v. Barrelli, 32 id. 467; Inter- domicil of origin or possibly any other 
 
 diction of Dumas, id, 679. They rest, domicil imputed by the law ; e. g., 
 
 however, upon a positive provision of Christenseus, Decis. Curiae Belgicse, v6l. 
 
 the Louisiana Code (Rev. Civ. Code, v. dec. 31 ; Oarpzovius, Processus Ju- 
 
 art. 46) which declares that "a volun- ris. t. 3, art. 1, no. 65; and opinion of 
 
 tary absence of two years from the State Grotius quoted by Henry, For. Law, 
 
 . . . shall forfeit a domicil within this p. 196. 
 State." It would seem to follow that ' 89 N. C. 115. 
 in such case a person, unless he ac- 
 
 137 
 
§84.] 
 
 THE LAW OP DOMICIL. 
 
 [chap. it. 
 
 sity of having some place by whose laws in case of death the 
 personal estate must be administered." 
 
 § 84. Vagabonds, Gypsies, etc. — It has been held by some 
 that a person may be such a wanderer or vagabond as to be 
 throughout life entirely without domicil. This doctrine has 
 the support of some of the modern continental jurists, al- 
 though it is denied by others ; and it is worthy of remark that 
 in the sources of the Roman law there is no special mention 
 of this class of persons.^ In a French case it was attempted 
 to include a comedien, a travelling player, in this class ; 
 but the doctrine was combated by Cochin,^ who declared 
 that every person is born with a domicil which adheres, un- 
 less another is gained, until death. In Guier v. O'DanieP 
 it was argued that Thomas Guier, a seafaring man, had no 
 domicil anywhere ; but the court held otherwise. Gypsies 
 have been included in the same class.* In the view of the 
 law as held by the British and American authorities a gypsy 
 or other vagabond has probably a theoretical domicil some- 
 where,^ but certainly it is in most cases practically impossible 
 
 1 See supra, § 80, note 2. 
 
 2 CEuvres, t. 1, p. 184. 
 2 1 Binney, 349 note. 
 
 * See Phillimore, Dom. no. 31 ; Id. 
 Priv. Int. L. vol. iv. no 65. 
 
 6 In the Matter of Bye, 2 Daly, 525, 
 Daly, J., says: " Although there are sup- 
 posed exceptional cases, as gypsies or 
 those wandering vagabonds or outcasts 
 ■who do not know where or when they 
 were bom, it is not so in fact ; for the 
 place of birth, when known, is the dom- 
 icil ; or if it is not there, it is the 
 place of which the person has the ear- 
 liest recollection, where he was first 
 seen by others." But this reasoning 
 cannot well be applied to the case of 
 a gypsy, since it is well known that, 
 generally speaking, members of that 
 race have no settled abodes. And as the 
 place of birth is resorted to in order to 
 ascertain the domicil of origin of a per- 
 son only upon the presumption that his 
 parents were there domiciled at the time 
 of his birth, the assumed fact that they 
 were habitual and life-long wanderers of 
 
 138 
 
 itself rebuts such presumption, and ren- 
 ders the place of birth wholly unimpor- 
 tant. The same applies d, fortiori to the 
 place where the gypsy is first seen, inas- 
 much as such place is resorted to only 
 as prima fade the place of birth, and 
 therefore (again only prima fa^ie) the 
 place where the parents were domiciled 
 at the time of the birth of the child. 
 (Upon the relation of place of birth to 
 domicil of origin, see infra, § 105.) It 
 is apparent that the ordinaiy rules for 
 the ascertainment of domicil are not ap- 
 plicable to the case of a member of a 
 wandering gypsy tribe or any like per- 
 son. Where, ho,wever, individuals be- 
 longing to that race are permanently 
 settled (see Ency. Brit. 9th ed. art. 
 Gypsy), or confine their wanderings to 
 a single State or country, e. g., England, 
 of course the same difficulty does not 
 arise. On this general subject Savigny, 
 System, etc. § 359 (Guthrie's trans, p. 
 132) : " We might ... ask what law is 
 applicable to a man for whom neither 
 a self-elected nor a paternal domicil can 
 
§ 85.] GENERAL RULES. [CHAP. IV. 
 
 to decide where, and the fiction of the persistence of domicil 
 of origin in such cases has been not inaptly characterized as " a 
 sterile subtlety which cannot be of any assistance in practice." ^ 
 § 85. French Jurists. — Most of the French jurists hold that 
 a person is not able to be without a domicil,^ although his 
 domicil may not be known ; and they follow the same course 
 of 'reasoning as the British and American authorities, relying 
 besides upon the interpretation of several provisions of the 
 French Codes. Some of them, however, — notably Demolombe, 
 — are unwilling to admit the universal application of the 
 principle.2 That author, while admitting that the theory of 
 the persistence of the paternal domicil is generally true, cites 
 two cases in which it does not appear to him sufficient to re- 
 move all the difficulties which the situation presents ; namely, 
 first, "where the trace of domicil of origin is entirely lost and 
 unknown," — for example in the case of " a strolling player, a 
 pedler, or other itinerant individual, who passes his life in 
 travelling from town to town. His domicil of origin is in 
 fact altogether unknown, — perhaps he never had any. He 
 was born in an inn, of parents in simple passage in a town, 
 and who have led the same cosmopolitan life which he has 
 
 be discovered. This question may arise Franjais, t. 1, no. 371 ; Eiohelot, Prin- 
 
 when the man dies, and his intestate cipes de Droit Civil Fran(;ais, t. 1, no. 
 
 succession is to be determined. Scarcely 224 ; Proudhon, Traite sur I'Etat des 
 
 any course will be possible but to as- Personnes, t. 1, p. 243 ; Laurent, Prin- 
 
 sume his residence at the time to be the cipes de Droit Civil Franfais, t. 2, no. 
 
 domicil, and therefore (if the question 66 ; Marcade, Explication, etc. de Code 
 
 relates to succession) the place at which Napoleon, sur art. 103, no. 3. See also 
 
 he has died." And Dicey (Dom. pp. Demolombe, Cours de Code Napoleon, 
 
 61, 117) expresses a similar opinion, t. 1, no. 348. Such is also the doctrine 
 
 Westlake says (Priv. Int. L. 1st ed. p. of Pothier, Intr. aux Gout. d'Orl^ans, 
 
 34, no. 34) : " Suppose a vagabond whose no. 12 ; and see the report of Conseiller 
 
 parentage and place of birth are totally d'Etat Emmery, presented at the time 
 
 unknown, so that no domicil of origin of the discussion of tit. iii. Code Napo- 
 
 can be assigned him ; practically such leon (Seance du 13 Vent8se, An 11). 
 a person could hardly come under the ^ Demolombe, loc. cit. ; Ducaurroy, 
 
 law of domicil for any other purpose Bonnier et Roustain, Commentaire, etc. 
 
 than that of jurisdiction, which would de Code Civil, t. 1, no. 470 ; Vallette, 
 
 probably be exercised over him without Cours de Code Civil, t. 1, p. 139. See 
 
 scruple by any court within the territory also Marcad^ Explication, etc. de Code 
 
 of which he might be found." NapoWon, sur art. 103, no. i ; Za- 
 
 ^ Anoelle, Thise pour le Doctorat chariae, t. 1, p. 278 ; and Sirey et Gil- 
 
 (Du Domicile), p. 105. bert. Code CivU Annot^, art. 103, notes 
 
 1 Duranton, Cours de Droit Fran^als, 21-25. 
 t. 1, no. 360 ; TouUier, Droit Civil 
 
 139 
 
§ 86.] THE LAW OP DOMICIL. [CHAP. IV. 
 
 continued with them and after them. The paternal domicil 
 is here evidently of no assistance. The truth is that these in- 
 dividuals then have no domicil even in the subtlety of the law. 
 Idem est non esse aut non apparere." Of such nomads Valette ^ 
 also remarks : " Without doubt, by running back far enough, 
 one may succeed in finding a sedentary ancestor, but it 
 would be puerility to pretend to attach his descendants to a 
 place where they never have had any interest whatever or 
 where they never have lived." The second case supposed by 
 Demolombe is as follows : " Even when the domicil of origin 
 is known, it is possible that a person who has not adopted 
 another, and who is thus reputed to have preserved the 
 former, has for a long time and absolutely abandoned it, and 
 has no longer any kind of connection with it. I demand 
 whether the domicil which is in such case, to speak truly, 
 only a pure abstraction, a sort of juridical subtlety, shall 
 nevertheless produce all of the effects of actual domicil." 
 " It may be perfectly well known that Paul was born at 
 Strasburg ; but twenty or thirty years have elapsed since he 
 quitted that city, since he broke all his relations with it, 
 where he has no longer any interest, and where perhaps he 
 knows no person. He travels, he rambles over the world, he 
 is not fixed in any place, or else he has devoted his life to 
 a military career and follows his colors everywhere." While 
 admitting that for most purposes the reasoning which invokes 
 the effect of the domicil of origin proceeds logically, he is of 
 opinion that it should not be pushed to the extent of covering 
 the facts of his second case, when a question of the service 
 of process or the like is involved. His remarks upon this 
 point, however, are based mainly upon the provisions of the 
 French Code of Procedure, and relate rather to municipal 
 than to national domicil ; indeed, the discussions of the later 
 French jurists have, generally, reference more to the former 
 than to the latter phase of domicil. 
 
 § 86. Municipal Domicil. — With respect to municipal domi- 
 cil the principle has been laid down as a general rule, subject 
 to few, if any, exceptions.^ It is necessary that a person who 
 
 » Loc. cit. Pick. 170 ; Opinion of the Judges, 5 
 
 1 Abington v, North Bridgewater, 23 Met. 687 ; Bulkley v. Williamstown, 
 
 140 
 
§ 86.J GENEUAL KULES. [CHAP. 17. 
 
 is subject to the laws of a State should have some certain, 
 fixed place where he may be called upon to perform the 
 duties and obligations which he owes to the State, and where, 
 too, he may enjoy the privileges which the State accords to 
 him. The cases of municipal domicil, therefore, lay down 
 the principle broadly that every person must have a domicil 
 somewhere. 
 
 The Maine Settlement cases ^ hold that a person may aban- 
 don his " home " within the meaning of that word as used in 
 the poor-laws, without gaining another. But the courts of 
 that State have been careful to say distinctly that such 
 " home " is something different from, and less than, domicil.^ 
 These cases, therefore, cannot be considered as militating 
 against the general principle laid down. 
 
 Several Massachusetts cases have occasioned some comment. 
 In the case of Briggs v. Eochester* there was evidence that in 
 April, 1858, B., who was then an inhabitant of Rochester, 
 Mass., removed out of the State cum animo non revertendi, 
 and with the intention of fixing his future abode and home 
 in Motthaven, New York; that on the 1st of May he had 
 not yet reached his intended new abode, but was sojourning 
 in New York City, and that shortly afterwards he went to 
 Motthaven and henceforth resided there. Upon this state of 
 facts the court held that B. had on the 1st of May ceased to 
 be an inhabitant and taxable in Rochester, putting its decision, 
 however, upon a distinction between domicil and inhabitancy 
 under the tax laws of the State. In Colton v. Longmeadow ^ 
 the court went a step farther. In that case the facts were 
 
 3 Gray, 493; Briggs v. Rochester, 16 or discussed, the questions raised har- 
 
 id. 337 ; Kirkland v. Whately, 4 Allen, ing been merely questions of evidence. 
 462 ; Wilson v. Terry, 11 id. 206 ; 2 Jjxeter v. Brighton, 15 Me. 58; Jef- 
 
 Whitney v. Sherbom, 12 id. Ill ; Lit- ferson v. Washington, 19 id. 293; Phil- 
 
 tlefield V. Brooks, 50 Me. 475 ; North lips v. Kingsfield, id. 375 ; Gorham v. 
 
 Yarmouth v. West Gardner, 58 id. 207 ; Springfield, 21 id. 58 ; Littlefield v. 
 
 Shepherd v. Cassiday, 20 Tex. 24; Cross Brooks, supra ; North Yarmouth v. 
 
 V. Everts, 28 id. 523. The French au- West Gardnei, supra ; Hampden v. Le- 
 
 thorities cited above (§ 85, note 1) are vant, 59 id. 557. 
 
 mainly upon municipal domicil. * See particularly Littlefield v. 
 
 The case of Kilbum v. Bennett, 3 Brooks, «<pra, and the cases cited «Mpra, 
 
 Met. 199, has been cited as establishing ^ 55, note 2, 
 a contrary doctrine, but this point does * 16 Gray, 337. 
 not seem to have been either decided * 12 Allen, 598. 
 
 141 
 
§ 87.] THE LAW OP DOMICIL. [CHAP. IV. 
 
 that on the 28th of April C. left Longmeadow, Mass. (where 
 he had up to that time always resided) cum animo non rever- 
 tendi, and proceeded on his way to Philadelphia, with the 
 intention of residing there. On the 1st of May he was not 
 in Massachusetts but in Connecticut, in itinere to Philadel- 
 phia, which place he reached a few days afterwards. Upon 
 this state of facts the court decided that on the 1st of May 
 C. had ceased to be an inhabitant of Longmeadow, so as to 
 be taxable there under the statute. In Shaw v. Shaw,® a 
 case of divorce, the same court (per Foster, J.), referring to 
 Colton V. Longmeadow and making it depend upon the con- 
 struction of the statute, said that the rule laid down in that 
 case " is such an exception to the ordinary rule of construc- 
 tion as ought not to be extended ; " and in the subsequent 
 tax case of Borland v. Boston,'^ after holding the word " in- 
 habitant," as used in the tax laws of that State, to mean, 
 according to an overwhelming preponderance of authority, 
 " one domiciled," and after doubting the authority of 
 Briggs V. Rochester and Colton v. Longmeadow, declared 
 (per Lord, J.) that "if they are to be deemed authority, 
 they should certainly be limited to the exact facts" con- 
 tained in them. 
 
 § 87. But, notwithstanding the comments upon it and the 
 fact that it was distinctly put upon the construction of the 
 statute, it is probable that Briggs v. Rochester was correctly 
 decided upon general principles as to domicil. For as B. had 
 left not only the town in which he had formerly resided, but 
 the State also, cum animo non revertendi, and had already 
 reached a point in the State in which he intended setting up 
 his new abode, the requirements of a change of g'wast-national 
 domicil were fulfilled.^ In such case it would be difficult to 
 contend that he retained his former municipal domicil, because 
 it would certainly be an anomaly for a person to have the 
 seat of his quasi-n&tional domicil in one place and that of his 
 
 ' 98 Mass. 158. tional or guasi-na,tionB.l domicil without 
 
 ' 132 Mass. 89. For the comments at the same time acquiring a municipal 
 
 at length in this case upon Briggs v. domicil, or having a definite place of 
 
 Eochester and Colton v. Longmeadow, abode within the State or country in 
 
 see supra, § 76, note 2. question, see infra, § 133. 
 
 1 That a person may acquire a na- 
 
 142 
 
§ 88.] GENERAL RULES. [CHAP. IV. 
 
 municipal domicil in another, — a greater anomaly, indeed, 
 than that he should be without municipal domicil. For, with 
 the cessation of his subjection to the laws of the former State, 
 would also cease the necessity for his having a certain, fixed 
 place where to perform the duties or fulfil the obligations im- 
 posed by its laws. On the other hand, as B. was proceeding 
 with reasonable speed to the place in New York selected by him 
 as his place of abode, but had not yet arrived there, he could 
 hardly be said to have gained a municipal domicil iu that 
 State. It follows that he must have been without one in either 
 State. Colton v. Longmeadow, however, although professedly 
 decided upon the authority of Briggs v. Rochester, contained 
 a different state of facts and cannot be sustained upon general 
 principles, inasmuch as no change of quasi-national domicil 
 had taken place while C. was in itinere, and it would seem 
 to follow that he retained his municipal domicil along with 
 his quasi-national domicil. 
 
 2. No Person can at the same Time have more than one 
 
 Domicil. 
 
 § 88. Roman Law. — While there was some conflict of opin- 
 ion among the jurists whose writings constitute the sources 
 of the Roman law, yet the generally received opinion seems 
 to have been that a person might have domicil in two places 
 at the same time if he appeared to be equally established 
 in both. Labeo decided that a person who transacted his 
 affairs equally in several places had domicil nowhere ; while 
 others were of opinion that under such circumstances he 
 had several domicils, and Paulus approved the latter opinion. 
 The text of Paulus is : " Labeo judicat, eum, qui pluribus locis 
 ex aequo negotietur, nusquam domicilium habere; quosdam 
 autem dicere refert, pluribus locis eum incolam esse aut domi- 
 cilium habere ; quod verius est." ^ We find Ulpian cited upon 
 this point in two passages in the Digest, in the first of which 
 he declares it to be a received opinion that a person may be 
 domiciled in two places if he appears to be equally established 
 in both. " Viribus prudentibus placuit, duobus locis posse 
 
 1 Dig. 50, t. 1, 1. 5. 
 
 143 
 
§ 144.J THE LAW OF DOMICIL. [CHAP. VII. 
 
 practice for a citizen of one State to remove to another State 
 to become a citizen of the latter in order to enable him to 
 prosecute suits in the courts of the United States. And pro- 
 vided the removal be real and not merely nominal, and he 
 has truly become a citizen of another State, I have never 
 understood that his motive would defeat his right to sue. It 
 might be a circumstance to call in question the bona fides and 
 reality of the removal or change of domicil. But if the new 
 citizenship is really and truly acquired, his right to sue is a 
 legitimate, constitutional, and legal consequence, not to be 
 impeached by the motive of his removal." 
 
 § 143. Id. Actual Choice. — Third. There must be actual 
 choice. In order to effect a change of domicil a person must 
 not only be capable of forming the proper intention and free 
 to do so, but he must actually form such intention. This 
 point has already been treated of.^ Absence from a place of 
 domicil and presence in another place if long continued is 
 often strong evidence of a change, but it does not of itself 
 constitute a change if the requisite animus be not present.^ 
 Some cases upon this point have been alluded to. The sub- 
 ject may be further illustrated by the case of an ambassador, 
 consul, or other person abroad in the civil service.^ There is 
 nothing in the official character of such person which pre- 
 vents him from acquiring domicil where he resides, but 5ven 
 when the residence is long continued the presumption of law 
 founded upon the usual course of affairs, and therefore subject 
 to rebuttal, is that he is abroad for a temporary purpose, 
 subject momentarily to recall, and hence has not chosen his 
 present abiding-place as a place of permanent abode. 
 
 § 144. Id. Requisite Animus not Intention to change Political 
 Nationality. — What then is the requisite animus ? 
 
 First. It is not, in cases of national domicil, intention to 
 change nationality. Allegiance and domicil are entirely dis- 
 
 merely an ostensible one." To the Ohle, 117 U. S. 123. See also Butler i>. 
 
 same effect are Pond v. Vermont Valley Farnsworth, 4 Wash. C. Ct. 101. 
 E. R. Co. 12 Blatoh. 280, and Kemna i Supra, §§ 125, 126, 135, 136. Seo 
 
 V. Brockhaus, 10 Bias. 128. The Su- authorities there cited, 
 preme Court of the United States ap- 2 Supra, §§ 125, 185 ; and infra,, 
 
 pears to have takgn the same view in eh. 20. 
 Chicago & Northwestern Ey, Co. v. » Infra, chs. 16 and 17. 
 208 
 
§ IM.J 
 
 CHANGE OP NATIONAL DOMICIL. [CHAP. VII. 
 
 tinct things. They may exist apart ; they may exist to- 
 gether; but the one does not necessarily involve the other. 
 Thus a man may be at the same time a British subject and a 
 domiciled American. Lord Westbury, in Udny v. Udny,^ thus 
 states the distinction : " The law of England and of almost 
 all civilized countries ascribes to each individual at his birth 
 two distinct legal states or conditions : one by virtue of which 
 he becomes the subject of some particular country, binding 
 him by the tie of natural allegiance, and which may be called 
 his political status ; another by virtue of which he has as- 
 cribed to him the character of a citizen of some particular 
 country, and as such is possessed of certain municipal rights 
 and subject to certain obligations, which latter character is 
 the civil status, or condition of the individual, and may be 
 quite different from his political status. The political status 
 may depend upon different laws in different countries ; where- 
 as the civil status is governed universally by one single 
 
 I L. K. 1 Sch. & Diy. App. 441. 
 And see, besides the cases cited in the 
 succeeding notes, Haldane v. Eckford, 
 8 Eq. Cas. 631 ; White v. Brown, 1 
 Wall. Jr. C. Ct. 217 ; Von Glahn v. 
 Varenne, 1 DUl. 516 ; Brown v. United 
 States, 5 Ct. CI. 571 ; Maltass v. Mal- 
 tass, 1 Kob. Eccl. 67 ; Parke, B., arg. 
 Attorney-General v. Dunn, 6 Mees. & 
 W. 521 ; and Dicey, Dom. p. 81 et seq. 
 Fcelix, in his work on Private Intema- 
 -tional Law, throughout confuses domi- 
 dil and nationality, and says expressly 
 (tome 1, titre 1, sec. 1, no. 28), that 
 '* the expressions ' lieu du domicile de 
 I'individu ' and ' territoire de sa nation ou 
 patrie ' may be employed indifferently." 
 The learned and judicious editor of the 
 later editions of that treatise (Deman- 
 geat), while criticising the author's lan- 
 guage, and declaring the idea that "a 
 man can have his domicil only in the 
 territory of the nation of which he is a 
 member " " completely inadmissible " 
 (3d ed. tome 1, p. 57, note ; see also 
 Fiore, Priv. Int. Law, Pradier-Fod^r^'s 
 trans, no. 14 and note), adds (loc. eit.) : 
 "It is necessary to remember that al- 
 most always the language of M. Foelix 
 
 will be found exact in fact ; that is to 
 say, that in the great majority of cases 
 the law of the domicil will be at the 
 same time the law of the people of 
 which the individual is a member ; " in 
 other words, domicil and nationality 
 usually coincide. The language, how-, 
 ever, is none the less misleading. The 
 French Code plainly recognizes the dis- 
 tinction between nationality and na- 
 tional domicil (Art. 13, Code Civil ; 
 see infra, ch. 19). In Bate v. Incisa 
 (59 Miss. 513), the court draws a dis- 
 tinction between national domicil and 
 domicil for the purpose of succession, 
 evidently misapplying the former term 
 in the sense of nationality. It is there 
 said : "Although the husband was a sub- 
 ject of the kingdom of Italy, and that 
 was his national domicil, he and his 
 wife made their home in Mississippi, 
 which was their domicil for the pur- 
 pose of succession." By this certainly 
 is not meant that a person can have 
 national domicil, in the sense in which 
 that term is usually understood, in one 
 country and ^uo^'-national domicil in 
 another. 
 
 14 
 
 209 
 
§ 91.] THE LAW OF DOMICIL. [CHAP. IT. 
 
 like. In such case there would be no certain uniform rule 
 for the guidance of courts in the determination of legal relar 
 tions, and the greatest perplexity and confusion Avould arise. 
 
 There are two ways of escaping the consequences of such 
 an anomalous situation : (1) by assuming that a person can 
 have but one domicil; and (2) by assuming that while a 
 person may have more than one domicil, yet he draws his 
 personal law from the earliest established domicil still ad- 
 hering to him. The latter is the position of the Civilians 
 according to Savigny,^ while the former is the position of the 
 British and American authorities. The result is, however, 
 practically the same, since in the one case the existence of a 
 later domicil is denied and in the other is simply ignored. 
 
 § 91. British and American Authorities. — Although perhaps 
 •from a desire to guard against a too broad statement, the 
 principle is sometimes laid down with the qualification, " for 
 the same purpose," ^ yet most of the British and American 
 authorities seem to consider it a broad general principle,^ — 
 in fact to assume it as a postulate,^ — upon which much of 
 the reasoning of the cases is based, that no person can have 
 more than one domicil at the same time. It has been indeed 
 
 1 System, etc. § 359 (Gnthrie's trans, las v. Mayor of Kew York, 2 Duer, 110; 
 p. 129, citing also Meier, De Conflictu Ryal v. Kennedy, 40 N. Y. Super. C't. 
 Legum, p. 16). 347 ; State v. Frest, 4 Harr. (Del.) 538; 
 
 ' Abington v. North Bridgewater, 23 Brent ■». Armfleld, 4 Cranch, C. Ct. 579; 
 
 Pick. 170 ; Opinion of the Judges, 5 Long v. Byan, 30 Gratt 718 ; Love v. 
 
 Met. 587 ; McDaniel v. King, 5 Gush. Cherry, 24 Iowa, 204 ; Eue High, Ap- 
 
 469 ; Hallet v. Ba-ssett, 100 Mass. 167; pellant, 2 Doug. (Mich.) 515 ; Kellogg 
 
 Thayer v. Boston, 124 id. 132 ; Brown v. Supervisors, 42 Wis. 97; Shepherd v. 
 
 V. Ashhough, 40 How. Pr. 260 ; HaUv. Cassiday, 20 Tex. 24 ; Cross v. Everts, 
 
 Hall, 25 Wis. 600. 28 id. 523. See also "Walke v. Bank of 
 
 2 Udny V. Ildny, L. E. 1 Sch. App. Cireleville, 15 Ohio, 288. During the 
 441, 448, per Hatherley, Lord Oh. (as- argument in Bruce's Case (2 Cr. & J. 
 sumed by both sides in Douglas v. 435, 445),. Bailey, B., used language to 
 Douglas, L. K. 8 Eq. Cas. 617); Church the effect that a person might have two 
 V. Eowell, 49 Me. 367; Thorndike v. domicils at the same time, viz., a domicil 
 Boston, 1 Met. 242 ; Opinion of the of origin and an acquired domicil. But 
 .Judges, 5 id. 587; Otis v. Boston, 12 in the opinion of the Court of Exchequer 
 Cush. 44 ; Bulkley v. WiUiamstown, 3 subsequently delivered by him in the 
 Gray, 493 ; Borland v. Boston, 132 same case, no allusion is made to such 
 Mass. 89 ; Bank v. Balcom, 35 Conn, doctrine. 
 
 351; Crawford u. Wilson, 4 Barb. 504; ' See remarks of Shaw, C. J., on 
 
 Lee V. Stanley, 9 How. Pr. 272; Bartlett Abington v. North Bridgewater, quoted 
 
 V. City of New York, 6 Sandf. 44; Doug- infra, § 97. 
 
 146 
 
§91.J 
 
 GENERAL RULES. 
 
 [chap. IV. 
 
 remarked in an obiter way that for some purposes a person 
 may have more than one domicil ; * but no case is reported 
 either in Great Britain or America in which it has been so 
 decided, if we except the cases of jurisdiction in divorce. 
 And it is to be observed that these dicta are often mere con- 
 cessions for tlie sake of the argument, and usually speak only 
 in a general way of the possibility of two domicils for some 
 purposes, without pointing out specifically for what purposes. 
 The remarks of Pollock, C. B,, in Capdevielle's case ^ are in 
 
 * Maxwell v. McClure, 6 Jur. N. s. 
 407, per Lord Weusleydale ; Somerville 
 V. Somerville, 5 Ves. Jr. 750 ; White v. 
 Brown, 1 Wall. Jr. C. Ct. 217 ; Greene 
 V. Greene, 11 Pick. 410. In the latter 
 case (divorce), Wilde, J., says (p. 416): 
 " Speaking individually, I should have 
 no hesitation in saying that a luan may 
 have two domicils in different States 
 or within separate jurisdictions, so as to 
 Ije amenable to a process of this descrip- 
 tion in either. That a man may have 
 two domicils for some purposes, although 
 he can have but one for succession to 
 personal property, is well settled in 
 England and in other countries; " citing 
 Somerville v. Somerville. And to the 
 expression of Lord Alvanley in the latter 
 case it will be found that all of these 
 dicta remount. It is apparent that that 
 learned judge merely intended to con- 
 cede for the sake of argument the possi- 
 bility of several domicils for some pur- 
 poses, while firmly maintaining and 
 demonstrating the impossibility of such 
 a state of things with respect to personal 
 succession (see his language infra, note 
 6). The authority to which he refers 
 is Denizart, who says (verb. Domicil, 
 no. 6) ; " On ne connoit qu'un seul do- 
 micile pour r^gler les successions ; mais 
 relativement aux mariages, on en dis- 
 tingue de deux esp&ces ; savoir, le do- 
 micile de droit et le domicile de fait," 
 — thus taking the distinction between 
 legal and actual domicil, or, in other 
 words, domicil and residence. At 
 another place (Bans de Mariage, nos. 
 9, 10) the same author thus enlarges : 
 " Un mineuT qui veut se marier, et qui 
 
 ne demeure pas chez ses pfere et mere, 
 ou chez son tuteur, est oblig^ de faire 
 publier des bans, non seulement dans la 
 paroisse oil il est domicilie de fait, mais 
 eucore dans celle de ses pfere et mere, ou 
 de son tuteur chez lesquels il a un do- 
 micile de droit, au moyen de ce que la loi 
 le soumet Ji leur puissance. Le change- 
 ment d'un domicile, de fait ou de droit, 
 ne suffit pas pour dispenser ceux qui se 
 marient, de faire publier des bans dans 
 la paroisse de ce domicile, h, moins que 
 depuis la sortie il ne se soit ecoule un 
 delai de six mois ; et d'un an, si en 
 changeant de domicile, ils ont anssi 
 change de diocfese. Sans cet intervalle, 
 la publication de bans est necessaire 
 non-seulement & la paroisse de I'ancien 
 domicile, mais encore & celle du nou- 
 veau." In this passage four so-called 
 domicUs seem to be contemplated; viz., 
 the present and the former, the legal and 
 the actual. But as we have to do only 
 with legal domicil, and not with the 
 so-called domicil cfe fait, the expres- 
 sions of Denizart do not, when we thus 
 come to examine them, militate with the 
 proposition laid down in the text, that 
 no person can at the same time have 
 more than one domicil. With this ex- 
 planation the oft-repeated expression of 
 Lord Alvanley entirely loses its force. 
 
 6 2 Hurl. & Colt. 985, 1018. He is 
 reported as saying : "I think that for 
 certain purposes a person may have 
 more than one place of domicil. I ap- 
 prehend that a peer of England, who is 
 also a peer of Scotland, and has estates 
 in both countries, who comes to Parlia- 
 ment to discharge a public duty and re- 
 
 147 
 
§91.J 
 
 THE LAW OF DOMICIL. 
 
 [CHAP. IV. 
 
 this respect exceptional, for he plainly intimates his opinion 
 that a person may have two domicils for the purposes of 
 succession and for other purposes. But this opinion is not 
 only not supported, but is flatly contradicted by the decided 
 cases which clearly establish — if they establish anything — 
 the principle that for whatever other purpose a person might 
 have more than one domicil, he can have but one for the 
 purposes of succession ; ^ besides, lie himself was of a con- 
 trary opinion in Steer's case.^ 
 
 turns to Scotland to enjoy the country, 
 is domiciled both in England and Scot- 
 land. A lawyer of the greatest emi- 
 nence, formerly a memher of this court 
 and now a member of the House of 
 Lords, to whose opinion I, in common 
 with all the profession, attach the 
 highest importance, once admitted to 
 me that for some purposes a man might 
 have a domicil both in Scotland and 
 England. I cannot understand why he 
 should not. Then why may not the 
 same thing occur with reference to com- 
 merce, manufactures, or any other pur- 
 pose ? Suppose, for instance, a person 
 born in England of French parents (and 
 therefore a French subject with an Eng- 
 lish domicil of origin) had a large com- 
 mercial establishment in both countries, 
 without any particular attachment to 
 either, but only intending to make the 
 most money he could in both ; why 
 should he not, for the purposes of the 
 particular establishment, be domiciled 
 in both countries, so that his property 
 in England would be administered ac- 
 cording to the law of England, and his 
 property in France according to the law 
 of France ? But somehow or other a 
 notion has crept in that although there 
 may be three sorts of domicil, as in 
 France, there can be only one for the 
 purpose of administering property in 
 England. I cannot conceive what reason 
 or necessity there is for any such distinc- 
 tion, and in the case I have put I cannot 
 understand why a person, for the pur- 
 pose of commerce and manufacture 
 
 should not have a domicil both in 
 England and France." 
 
 " SomervUle o. Somerville, 7 Ves. 
 Jr. 750 ; Aikman v. Aikman, 3 Macq. 
 H. L. Cas. 854, per Campbell, Lord Ch., 
 and Lord Wensleydale ; Maxwell v. Mc- 
 Clure, 6 Jur. N. s. 407, per Lord Wens- 
 leydale; Crookenden v. Fuller, 1 Swab. 
 & Tr. 441 ; "White v. Brown, 1 Wall. Jr. 
 C. Ct. 217 ; Oilman v. Oilman, 52 Me. 
 165 ; Greene v. Oreene, 11 Pick. 410; 
 Dupuy V. Wurtz, 53 N. Y. 556 ; Von 
 Hoffman v. Ward, 4 Eedf. 244 ; Hind- 
 man's Appeal, 85 Pa. St. 466 ; Dau- 
 phin Co. V. Banks, 1 Pears. 40 ; Oravil- 
 lons V. Richards Ex'rs, 13 La. Eep. 
 293. See remarks of Lord Loughbor- 
 ough in Ommanney v. Bingham, infra, 
 § 93. 
 
 In Somerville v, Somerville Lord Al- 
 vanley puts the subject thus: "The 
 next rule is that though a man may 
 have two domicils for some purposes, he 
 can have only one for the purpose of 
 succession. That is laid down expressly 
 by Denizart under the title Domicil ; 
 that only one domicil can be acknowl- 
 edged for the purpose of regulating the 
 succession to the personal estate. I 
 have taken this as a maxim, and am 
 warranted by the necessity of such a 
 maxim ; for the absurdity would be 
 monstrous, if it were possible, that 
 there should be a competition between 
 two domicils as to the distribution of 
 the personal estate. It could never 
 possibly be determined by the casual 
 death of the party at either. That 
 
 ' 3 Hurl. & Nor. 594. 
 
 148 
 
§ 93.] GENERAL RULES. [CHAP, IV. 
 
 § 92. Id. — Upon the principles laid down in most of the 
 British and American cases, it seems impossible to conceive 
 of a person having more than one domicil. At birth he 
 receives a domicil of origin ; ^ he cannot acquire a new domi- 
 cil without abandoning his (^omicil of origin and taking up 
 the new one with the intention of making it his sole domicil.^ 
 In such case, however, there is merely the substitution of the 
 one for the other, and not the cumulative acquisition of a new 
 domicil. And so also, according to the American authori- 
 ties, in every subsequent change of domicil, the old is aban- 
 doned and the new substituted for it.' Even if we accept the 
 doctrine of Udny v. Udny,* that the domicil of origin can 
 never be wholly extinguished by the act of the person, we are 
 led to the same conclusion ; for it was there said that during 
 the continuance of the acquired domicil the domicil of origin 
 is in abeyance. It is, therefore, for all purposes, except for 
 the possibility of reverter, extinct ; so that, in such case, 
 practically the acquired domicil is the only one. 
 
 Perhaps the only exception to the general rule — if indeed 
 it is an exception — arises from the disposition of the courts 
 to assume jurisdiction in favor of a wife in cases of divorce 
 in order to prevent her husband from taking advantage of his 
 own wrong and thus to prevent a failure of justice. This 
 subject is discussed elsewhere.^ 
 
 § 93. Id. Lord Alvanley in Somerville v. Somerville and 
 Lord Loughborough in Ommanney v. Bingham. — At the close of 
 his judgment in the case of Somerville v. Somerville,^ the 
 Master of the Rolls, Lord Alvanley, proposed what he con- 
 sidered the only possible case of two equal domicils. He 
 said : " I shall conclude with a few observations upon a ques- 
 
 would be most whimsical and capri- State v. Ross, 23 N. J. Law (3 Zab.), 
 
 cious. It might depend upon the acci- 517; or taxation, Id. and Dauphin Co. 
 
 dent whether he died in winter or v. Banks, supra. 
 
 summer, and many circumstances not ^ See infra, § 104. 
 
 in his choice; and that never could regu- ^ See infra, ch. 7. 
 
 late so important a subject as the sue- ' Infra, ch. 7. 
 
 cession to his personal estate." See also * L. R. 1 Sch. App. 441; infra, 
 
 Bouhier, Obs. sur la Cout de Bourg. § 192 e« seq. 
 
 ch. 22, p. 448, ed. 1742. ^ Supra, § 39; and infra, § 222 
 
 That 'a person can have but one et seq. 
 domicil for the purpose of voting, see ^ 5 Ves. Jr. 750, 791. 
 
 149 
 
§ 93.] THE LAW OP DOMICIL. [CHAP. IV. 
 
 tion that might arise, and which I often suggested to the 
 bar. What would be the case upon two contemporary and 
 equal domicils, if ever there can be such a case ? I think 
 such a case can hardly happen, but it is possible to suppose 
 it. A man born no one knows where, or having had a 
 domicil that he has completely abandoned, might acquire in 
 the same or different countries two domicils at the same in- 
 stant and occupy both under exactly the same circumstances ; 
 both country houses, for instance, bought at the same time. 
 It can hardly be said that of which he took possession first 
 is to prevail. Then suppose he should die at one, shall the 
 death have any effect ? I think not, even in that case ; and 
 then ex necessitate the lex lod rei sitae must prevail, for the 
 country in which the property is would not let it go out of 
 that until they knew by what rule it is to be distributed. 
 If it was in this country they would not give it until it was 
 proved that he had a domicil somewhere." But the closing 
 words of his Honor are significant, as indicating his opinion 
 that the case supposed was rather one of no known domicil 
 than of two equal domicils. However, in the liglit of the late 
 British and American decisions, the case supposed appears 
 to be quite impossible. If the individual ever had a domicil 
 of origin it would cling to him until he had acquired another 
 as his sole domicil. And even if no such original domicil 
 could be shown, it would be a physical as well as a legal im- 
 possibility to acquire two domicils at once ; for domicil can 
 only be acquired by the fact of bodily presence coupled with 
 the requisite animus, and, when once acquired, continues 
 until it is abandoned. It seems therefore to be entirely in 
 accordance with the modern decisions to hold that the domi- 
 cil first acquired would be the sole domicil, and, as such, 
 would furnish the rule of distribution. 
 
 Lord Loughborough, in Ommanney v. Bingham,^ remarks : 
 " In no case is it possible for a man to be so situated as to 
 admit the idea of anything like two domicils for the purpose 
 of succession, unless his time were so arranged as to be 
 equally and statedly divided betwixt two countries in each of 
 
 ° Robertson, Pers. Sue. Appendix, 471. 
 
 150 
 
§95.] 
 
 GENERAL RULES. 
 
 [OHAP. IV. 
 
 which his residence had exactly the same appearance of per- 
 manency as in the other, — a case wliich could hardly occur, 
 for some shade of difference would in general appear, giving 
 a clearer character of permanency or established settlement 
 to one of the situations than the other." The above criticism 
 of Lord Alvanley's remarks may also be applied to those of 
 Lord Loughborough. 
 
 § 94. " Domicil " and " Principal Domicil." — Formerly some 
 jurists were in the habit of speaking of a man's " domicil " 
 and " principal domicil ; " but the practice now is wellnigh 
 universal to apply the term " domicil " only to what was thus 
 formerly spoken of as the " principal domicil," and to use the 
 word " residence " to describe that which falls short of it.^ 
 Thus it is said that a person may have several residences, but 
 only one domicil.^ 
 
 § 95. Different Domicils for Different Purposes. — It is said 
 by some of the authorities that a person may have different 
 domicils for different purposes.^ It is to be remarked that 
 
 1 See Phillimore, Dom. ch. 3 and 
 notes ; Id. Int. L. vol. iv. ch. 5. Also 
 Denizart, verb. Domicil, uos. 1 and 2 : 
 " On appelle domicile le lieu de la 
 demeure ordinaire de quelqu'un. Le 
 principal domicile de cbacun est celui 
 qu'il a dans le lieu ou il tient le si^ge et 
 le centre de ses affaires," etc. See su- 
 pra, § 91, note 4. This is the same dis- 
 tinction as that which Story makes 
 between ' ' domicil in its ordinary accep- 
 tation " and in its " strict and legal 
 sense." Confl. of L. § 41. 
 
 2 Gilman v. Oilman, 52 Me. 165 ; 
 Bartlett v. City of New York, 5 Sandf. 
 44 ; Douglas v. Mayor of New York, 2 
 Duer, 110 ; State v. Boss, swpra ; Long 
 V. Ryan, 30 Gratt. 718 ; Love v. Cherry, 
 24 Iowa, 204 ; State v. Steele, 33 La. 
 An. 910. 
 
 1 Yelverton v. Yelvertou, 1 Swab. & 
 Tr. 574; Smith v. Groom, 7 Fla. 81. 
 See also Phillimore, Law of Dora. no. 
 20, p. 17; Id. Int. L. vol. iv. no. 54 ; 
 and Kent's Comm. vol. ii. p. 431 note j 
 see infra, § 96. 
 
 The learned editor of the eighth edi- 
 tion of Story on the Conflict of Laws 
 
 speaks thus on this subject (p. 45) : "It 
 is sometimes said that a person cannot 
 have more than one domicil at the same 
 time for the same purpose. This quali- 
 fication was probably suggested by the 
 use of the term ' domicil ' to designate 
 different kinds of residence, to which 
 the term is not applicable in its technical 
 sense. ... It has never been held that 
 a person can have a domicil, in its tech- 
 nical sense, in more than one country at 
 one time. The rules for ascertaining 
 domicil admit of only one domicil at a 
 time. In order to give any effect to the 
 suggestion that a man may have differ- 
 ent domicils for different purposes, the 
 purpose for which reference is made 
 to domicil, in cases of a conflict of 
 laws, must be regarded as a single 
 purpose. For this purpose he cannot 
 have more than one domicil at the 
 same time." 
 
 Dicey thus speaks upon this subject 
 (Dom. pp. 62-66) : " Can a person, have 
 different domicils for different purposes ? 
 It is clear that no man can for the same 
 purpose, i. e., when the determination 
 of one and the same class of rights is in 
 
 151 
 
§95.J 
 
 THE LAW OP DOMICIL. 
 
 [chap. IV. 
 
 no trace of this doctrine is to be found in the Koman law 
 sources ; and upon strict analysis it will be found, the writer 
 
 question, be taken to have a domicil in 
 more countries than one at the same 
 time. 
 
 " A doubt has, however, been raised, 
 whether a person cannot have at the 
 same moment a domicil in one country 
 for the determination of one class of 
 rights (e. g., rights of succession), and 
 a domicil in another country for the de- 
 termination of another class of rights 
 (e. g., capacity for marriage)." After 
 quoting Lord Alvanley, in Somerville v. 
 Somerville, supra, Pollock, C. B., in 
 Be Capdevielle, supra, and Phillimore, 
 Int. L. vol. iv. no. 54, Law of Dom. no. 
 20, he continues : " If the notion sug- 
 gested by these authorities be correct, 
 "Rule 3 must be modified and run, 'No 
 person can for the same purpose have 
 at the same time more than one dom- 
 icil.' 
 
 " The rule, however, as it stands, is 
 probably correct. The notion that a 
 person may be held in strictness to have 
 been domiciled in Scotland for the pur- 
 pose of determining the validity of his 
 will, and to havei been domiciled at the 
 same moment, in Germany, for the pur- 
 pose of determining the validity of his 
 marriage (in so far as that depends upon 
 domicil), is opposed to the principles by 
 which the law of domicil is governed, 
 and is not, it is believed, supported by 
 any decided case. 
 
 " The prevalence of the notion is due 
 to two causes : — 
 
 " First. The term ' domicil ' is often 
 used in a lax sense, meaning no more 
 than is meant by the term ' residence ' 
 as used in this treatise. Thus, a ' foren- 
 sic domicil ' or a ' commercial domicil ' 
 often signifies something far short of 
 domicil strictly so called. Now, it is 
 obvious that a person may have a ' resi- 
 dence ' in one place, and a ' domicil ' in 
 another, and that residence may often 
 be sufficient to confer rights or impose 
 liabilities. It is from cases in which 
 ' residence ' alone has been in question 
 that the possibilitv of contemporaneous 
 
 152 
 
 domicils in different countries for differ- 
 ent purposes has suggested itself. Thus 
 D., though domiciled in France, can, 
 if present in England, be sued in our 
 courts. This fact has been expressed 
 by the assertion that D. has a forensic 
 domicil in England, — an expression 
 which certainly countenances the notion 
 that D. is for one purpose domiciled in 
 England, and for another in France. 
 A forensic domicil, however, means 
 nothing more than such residence in 
 England as renders D. liable to be sued; 
 the co-existence, therefore, of a forensic 
 domicil in one country, and of a full 
 domicil in another, is simply the result 
 of the admitted fact that a person who 
 resides in England may be domiciled in 
 France, and does not countenance the 
 idea that D. can, in strictness, be at one 
 and the same moment domiciled both in 
 France and in England. 
 
 " Secondly. The inquiry which of 
 two countries is to be considered a per- 
 son's domicil, has (especially in the 
 earlier cases) been confused with the 
 qiiestion whether one person can at 
 the same time have a domicil in two 
 countries. 
 
 "D. is a Scotchman. He has a 
 family estate in Scotland. He pur- 
 chases a house and marries in England, 
 where he generally lives with his wife. 
 He, however, visits Scotland eveiy 
 summer, and goes to his estate there 
 during the shooting-season. On his 
 death in England intestate, a question 
 arises as to the succession to D.'s mov- 
 able property. The question must be 
 decided with reference to the law of 
 Scotland or of England, according to 
 the view taken of D.'s domicil. The 
 decision depends on a balance of evi- 
 dence. Probably, if there are no other 
 cireumstances than those stated, the 
 courts will hold him domiciled in 
 England. 
 
 "Exception. A person within the 
 operation of 2i & 25 Viet. c. 121, may 
 possibly have one domicil for the pur- 
 
§95.] 
 
 GENERAL RULES. 
 
 [chap. it. 
 
 thinks, that a person can have but one domicil for whatever 
 purpose, although possibly for some special purposes there 
 may be different modes of proof. The same elements of fact 
 and intention are requisite to produce a change of the same 
 grade of domicil, whether that grade be national, quasi- 
 national, or municipal. Difficulty, however, sometimes arises 
 from the consideration of cases of national character in time 
 of war as authorities upon the general subject of domicil. 
 National character is generally treated as dependent upon 
 domicil, although certain principles are applied to the deter- 
 mination of the former which have no place in the deter- 
 mination of domicil as applicable to personal succession, 
 jurisdiction, and the like. Indeed, the English Prize Courts 
 have laid down some principles with respect to national char- 
 acter which are wholly in conflict with the generally approved 
 
 pose of testate or intestate sueeession, 
 and another domicil for all other 
 purposes. 
 
 " The general effect of 24 & 25 Vict, 
 c. 121, is to enable the Crown to make a 
 convention with any foreign State, the 
 effect of which convention shall be that 
 no British subject dying in the country 
 to which the convention applies, or 
 subject of such country dying in the 
 United Kingdom, shall be deemed to 
 have acquired a domicil in the country 
 where he dies, unless he has fulfilled 
 the conditions provided by the act. 
 This enactment apparently applies only 
 to domicil for purposes of testate or in- 
 testate succession, and does not affect 
 » person's domicil for other purposes, 
 e. g., the determination of legitimacy 
 or of the validity of a marriage. 
 
 " If a convention were made under 
 it, e. g., with France, a case such as 
 the following might arise : D., a Brit- 
 ish subject, dies (after the supposed 
 convention) domiciled in fact in France, 
 though resident at the moment in 
 England. He has failed to comply 
 with the provisions of 24 & 25 Vict. 
 c. 121, o. 1. As regards, therefore, 
 succession to his movables, he is held 
 domiciled in England. 
 
 " A further question arises as to the 
 
 legitimacy of D.'s child, born in France, 
 after D.'s acquisition of a French domi- 
 cil. This question, must probably be 
 decided on the view of D.'s being domi- 
 ciled in France. D., therefore, will be 
 held for one purpose to have had an 
 English, and for another, to have had 
 a French domicil at the same time. " 
 
 The following language of Shaw,, 
 C.J., in Otis V. Boston (12 Gush. 44, 49), 
 although used primarily with reference 
 to municipal inhabitancy, may, it seems 
 to the writer, well be extended to dom- 
 icil of whatever grade. He says : " Nor 
 is it consistent with these provisions " 
 (of the tax laws) "to hold that a man 
 may be an inhabitant in one town for 
 purpo-ses of taxation, and in another for 
 the enjoyment of political privileges or 
 municipal rights. The heing ' an in- 
 habitant ' is a fad first to be fixed. 
 These laws, we think, assume that a 
 man may be an inhabitant of some one 
 town in the Commonwealth, and cannot 
 at the same time be an inhabitant of any 
 other ; and that there are facts and cir- 
 cumstances attending every man's per- 
 sonal, social, and relative condition, 
 which do determine in what town he is 
 an inhabitant, and that these facts and 
 circumstances are capable of judicial 
 proof." 
 
 163 
 
§96.J 
 
 THE LAW OP DOMICIL. 
 
 [chap. 
 
 IT. 
 
 pri^iciples of the law of domicil. It is best, therefore, to 
 consider the cases of national character as standing wholly 
 by themselves, and resting upon something which is not 
 domicil in its true sense, but only resembles it in its gen- 
 eral features.^ 
 
 § 96. Id. — It is said by Chancellor Kent : " There is a 
 political, a civil, and a forensic domicil ; " ^ and similar lan- 
 guage is used by others. It is not probable that this learned 
 jurist meant by a political domicil the place where one's 
 allegiance is due. This is an error fallen into by some, but 
 allegiance (except that temporary allegiance which every per- 
 son owes to the laws of the place where he happens to be) 
 and domicil have no necessary connection.^ By the phrase 
 " political domicil " is probably meant the place where, if a 
 man's domicil and allegiance happen to coincide, he dis- 
 charges his obligations to the Government and enjoys his 
 rights of citizenship. But so far as is discoverable from the 
 decided cases, this sort of domicil is constituted in exactly 
 the same manner as that sort of domicil which is used to 
 
 2 See supra, § 26, and infra, § 387. 
 These remarks have reference more par- 
 ticularly to the English cases. 
 
 1 Comm. vol ii. p. 431 note. 
 
 The French law recognizes several 
 dififerent kinds of domicil with reference 
 to different purposes; viz., "domicile 
 reel," or general, " domicil elu," "domi- 
 cile de secours," and political domicil. 
 The first of these is domicil in its gen- 
 eral sense, and such as is discussed in 
 this work. "Domicile 61u" is a con- 
 ventional or fictitious domicil, actually 
 or presumably selected by the parties 
 (or one or more of them) to a transaction, 
 for the purpose of designating a particu- 
 lar place where may be performed or ex- 
 ecuted acts flowing out of or relating to 
 such transaction. It is a pure fiction, and 
 is not in any sense domicil as that term is 
 understood in our jurisprudence. Upon 
 this subject see Sirey et Gilbert, Code 
 Civil Annot6, art. Ill and notes, and 
 the authorities there cited. "Domicile 
 de secours " is thus defined by La loi du 
 24 Vendemiaire, An 2 : " C'est le lieu oil 
 
 154 
 
 I'homme nfessitenx a droit aux secours 
 publies." It is largely the same as 
 pauper settlement under the laws of 
 England and the various States of this 
 Union, although it seems to depend 
 upon mere sojourn or continued physi- 
 cal presence in a particular place to a 
 larger extent than does settlement either 
 in England or in this country. The 
 subject is discussed at some length in 
 the Thfeses pour le Doctorat of AneeUe, 
 Chavanes, and De Fongaufier. " Do- 
 micile politique" indicates the place 
 where a Frenchman of the age of twen- 
 ty-one years, and enjoying civil and 
 political rights, may exercise the right 
 of suffrage. It does not depend upon 
 "domicile r^el," as does the right of 
 suffrage in this country. A French- 
 man may have a "domicile r^el " in 
 one place and the right of suffrage in 
 another, although the two usually cor- 
 respond. See on this subject the Thises 
 above named. 
 
 ^ See infra, § 144 et seq. 
 
§ 97.] GENERAL RULES. [CHAP. IT. 
 
 determine the civil as distinguished from the political status 
 of the individual.^ Speaking generally, the same may be 
 said with regard to "forensic domicil." For, as has been 
 justly pointed out by Savigny, the adherence of the law of a 
 particular State as a quality of the person and the subjection 
 of the person to the jurisdiction of the courts of a State " are 
 to be regarded only as different sides of the totality of the 
 local law " * — different appearances of the same territorial 
 law to which the individual is subject. Generally speaking, 
 therefore, jurisdiction, according to the British and American 
 cases, when it depends upon domicil at all, depends upon the 
 same kind of domicil as that which determines civil status. 
 This is illustrated by the cases involving the question of the 
 jurisdiction of the United States Courts in suits between citi- 
 zens of different States.^ With respect to jurisdiction for pur- 
 poses of divorce, however, certain considerations have induced 
 at least an apparent departure from this principle in certain 
 cases.® 
 
 § 97. Municipal Domicil. — The maxim applies as well to 
 cases of municipal domicil as to those of national or quasi- 
 national domicil.^ It is true that in cases of the former 
 class it is more frequently difficult to distinguish between 
 what are apparently equal residences, and therefore slighter 
 circumstances have to be resorted to for that purpose, but 
 there is almost invariably some preponderating circumstance 
 which fixes some particular place as more than all others the 
 home of the person. The extreme inconvenience of attributing 
 
 ' See supra, § 53. v. Gore, Parker, C. J., says (p. 377) : 
 * System, etc. § 356 (Guthrie's trans. " In England it is said there may be two 
 p. 114). domicils at the same time, and then the 
 6 Supra, § 48. question of hirth or death may be im- 
 ' Supra, § 39, and infra, § 222 et portant, among other things, in ascer- 
 seq. taining the rule of succession ; but by 
 1 Harvard College v. Gore, 5 Pick, our law a man cannot be an inhab- 
 370 ; Abington v. North Bridgewater, itant of two towns at the same time. 
 23 id., 170; Opinion of the Judges, The right to rote, eligibility to office, 
 5 Met. 587 ; Otis v. Boston, 12 Gush, and the liability to taxes in one town, 
 44 ; State v. Ross, 23 N. J. Law (3 Zab.) are necessarily exclusive of the same 
 517; Dauphin County v. Banks, 1 Pears, rights and liabilities in all other towns. 
 40 ; State v. Steele, 33 La. An. 910 ; Showing, therefore, that the testator 
 Brown v. Boulden, 18 Tex. 431 ; Shep- was an inhabitant of Waltham, is show- 
 herd II. Cassiday, 20 id. 24 ; Cross v. ing that he was not an inhabitant of 
 Everts, 28 id. 523. In Harvard College Boston." 
 
 155 
 
§ 98.] THE LAW OP DOMICIL. [CHAP. IT. 
 
 to a person more than one place for settlement, voting, taxa- 
 tion, militia and jury services, and the like, becomes apparent 
 without discussion. Says Shaw, C. J., in Abington v. North 
 Bridgewater,^ a case of municipal domicil : " The supposition 
 that a man can have two domicils would lead to the absurdest 
 consequences. If he had two domicils within the limits of 
 distant sovereign States, in case of war, what would be an act 
 of imperative duty to one would make him a traitor to the 
 other. As not only sovereigns, but all their subjects, collec- 
 tively and individually, are put into a state of hostility by war, 
 he would become an enemy to himself, and bound to commit 
 hostilities and afford protection to the same persons and 
 property at the same time. But without such an extravagant 
 supposition, suppose he were domiciled within two military 
 districts of the same State, he might be bound to do personal 
 service at two places at the same time ; or in two counties, 
 he would be compellable, on peril of attachment, to serve on 
 juries at two remote shire towns; or in two towns, to do 
 watch and ward in two different places. Or, to apply an 
 illustration from the present case. By the provincial laws 
 cited, a man was liable to be removed by a warrant to the 
 place of his settlement, habitancy, or residence, — for all these 
 terms are used. If it were possible that he could have a 
 settlement or habitancy in two different towns at the same 
 time, it would follow that two sets of civil officers, each acting 
 under a legal warrant, would be bound to remove him by 
 force, the one to one town, and the other to another. These 
 propositions, therefore, that every person must have some domi- 
 cil, and can have but one at one time for the same purpose, 
 are rather to be regarded as postulata than as propositions 
 to be proved. Yet we think they go far in furnishing a test 
 by which the question may be tried in each particular case." 
 
 3. Every Person who is sui juris and capable of controlling 
 his Personal Movements may change his Domicil at Pleasure. 
 
 § 98. Roman Law. — Freedom of choice and change lay at 
 the foundation of domicil in the Roman law, and was one 
 
 2 23 Pick. 170, 177. 
 
 156 
 
§ 99.] GENERAL RULES. [CHAP, IV. 
 
 of the distinguishing features between it and origo. We 
 have seen that the municeps could not, without the consent 
 of the magistrates, divest himself of his origo, even though 
 he acquired citizenship elsewhere, and that such acquisition 
 could not take place through his own act and will alone. 
 But it was different with respect to domicil, which, subject 
 to a few exceptions, might be abandoned or acquired at 
 pleasure. "Nihil est impedimento, quominus quis, ubi ve- 
 lit, habeat domicilium, quod ei interdictum non sit." ^ And 
 so strongly was this freedom insisted upon, that we find it 
 decided that if a legacy have annexed to it a condition of 
 residence in a particular place, the condition is void.^ The 
 exceptions were : (1) where residence in a particular place 
 was forbidden (alluded to in the above-cited text) ,3 and (2) 
 where an incola had been called to the exercise of public 
 functions, in which case he was not allowed to abandon 
 his domicil until these functions were fulfilled.* A third ex- 
 ception to the general rule of freedom of choice, although 
 not an exception to the rule as above stated, was the case 
 of a person whose domicil was fixed by law, e.g., a soldier 
 who was domiciled at the place where he served, or an exile 
 who was domiciled at the place to which he was banished.^ 
 Such was the case in the time of the earlier Empire ; but sub- 
 sequently, the municipal burdens having become so grievous 
 
 1 Dig. .50, t. 1, 1. 31. rected an error fallen into by Washing- 
 
 2 Dig. 35, t. 1, 1. 71, § 2. See m- ton, J., in The Venus, 8 Crauch, 253, 
 pra, § 5, note 1. 278, in saying that "Grotius nowhere 
 
 ' See also Dig. 48, t. 22, 1. 7, § 10. uses the word ' doniioil.' " " Domi- 
 
 * Dig. 50, t. 1, 1. 34 : " Incola jam cilium " is used in the passage above 
 
 muneribus publicis destinatus, nisi per- cited. The remark quoted is eiTO- 
 
 fecto munere, incolatui renunciare non neously attributed by Phillimore to 
 
 potest ;" and Code 10, t. 39, 1. 1 : " Non Marshall, C. J., Law of Dom. no. 8, 
 
 tibi obest, si cum incola esses, aliquod note (i) ; Int. L. vol. iv. no. 42, note (o). 
 munus suscepisti ; modo si antequam ^ Dig. 50, t. 1, 1. 23, § 1, and id. 
 
 ad alios honores vocareris, domicilium 1. 22, § 3. See supra, § 5, note 1. So 
 
 transtulisti." Grotius understood the also a senator had a domicilium, dig- 
 
 provisions of the Roman law upon this nitatis in the Imperial City, although 
 
 subject to mean rather that an incoia this did not prevent him from having a 
 
 could not, by changing his domicil, free domicil elsewhere. Code 10, t. 39, 1. 8 ; 
 
 himself from his municipal obligations id. 12, 1. 1, 1. 15, and Dig. 50, 1. 1, 1. 22, 
 
 than that he was not allowed to change § 6. See same note and Voet, Ad Pand. 
 
 his domicil. De Jure Belli et Pacis, 1. 5 t. 1, no. 93. 
 1. 2, c. 5. no. 24. Here may be cor- 
 
 157 
 
§ 99.] THE LAW OP DOMICIL. [CHAP. IV. 
 
 as to cause many to seek to es6ape them, it was found ne- 
 cessary to prohibit change of domicil, except when specially 
 authorized by the Emperor, and to enforce the prohibition by 
 confiscation of goods.^ But the exceptions arising out of 
 particular and peculiar circumstances cannot be regarded as 
 shaking the general rule of freedom of choice. 
 
 § 99. Modern Jurists. — Among the modern continental 
 jurists the principle of entire freedom to change domicil at 
 pleasure has been generally received.^ Bouhier Says^ em- 
 phatically : " One of the principal attributes of the freedom of 
 man is the power to go where he pleases, and to transfer his 
 domicil to whatever place seems good to him, unless he be 
 subject to some political law or seignorial right which for- 
 bids." Mouricault, in his report to the Tribunat, says :^ " The 
 citizen is not tied down to his domicil of origin ; free, at his 
 majority or even at his emancipation, to dispose of his person, 
 he may choose his residence where it seems good to him ; he 
 may quit not only his domicil of origin for another, but again 
 that one for a new one ; he may, in a word, change it at will 
 according to his interest or even according to his fancy." 
 This language may have been intended to apply only to 
 change of domicil within the territory of France, although 
 its scope seems to be wider. There has been some difference 
 of opinion in France as to whether a Frenchman can establish 
 
 ' Dig. 27, t. 1, 1. 12, and Code 10, 163) held the principle of freedom of 
 t. 1, 1. 4. These texts do not seem en- choice and change of domicil as a gen- 
 tirely satisfactory, but such was the eral maxim, but admitted a possible ex- 
 opinion of Cujas, tom. 5, 1148. See ception in the case of Russian subjects, 
 also Aneelle, p. 68, Chavanes, p. 61, This opinion he subsequently qualified. 
 Roussel, p. 28, and De Fongaufier, p. 55, Int. L. vol. iv. 2d ed. no. 205. It may 
 Theses pour le Doctorat. however be taken as beyond peradven- 
 
 1 Voet, Ad Pand. 1. 5, t. 1, no. ture that the courts of this country and 
 
 99 ; Corvinus, Jur. Rom. 1. 10, t. 39 ; Great Britain would refuse to give effect 
 
 Pothier, Intr. aux Cout. d'Orlfens, no. to any restriction put by the Government 
 
 li ; Bouhier, Obs. sur la Cout. de of Russia, or of any other country, upofl 
 
 Bourg. ch. 22, p. 417, ed. 1742 ; Foelix, the free migration of its subjects, and 
 
 Droit Int. Priv. t. 1, no. 28 ; Savigny, would, in a proper state of facts, hold a 
 
 System, etc. § 353 (Guthrie's trans, p. change of domicil in the case of a sub- 
 
 99) ; Demolombe, Cours de Code Napo- jectof such Government, notwithstand- 
 
 Uon, t. 1, no. 351 ; Calvo, Manuel de ing any prohibition, general or special, 
 
 Droit Int. § 201, and Diet. Droit Int. forbidding his emigration. 
 Pub. et Priv. verb. Domicile. * Zoc. cit. 
 
 PhiUimore (Law of Dom. nos. 162, ' Stance du 18 Veut6se, An 11. 
 
 158 
 
§ 100.] 
 
 GENERAL RULES. 
 
 [chap. IV. 
 
 a domicil in a foreign country in complete derogation of his 
 Trench domicil. Demolombe* holds that he cannot. But 
 the great weight of authority — both of authors and judicial 
 decisions^ — is that he can, and the law of July 27,1872, 
 providing for registration for military purposes, assumes the 
 latter view as correct. 
 
 Another and more serious question has divided opinion 
 among jurists, particularly those of France, — namely, whether 
 a foreigner may acquire without authorization a true domicil 
 in a country whose laws require authorization. This question 
 will be discussed further on.® 
 
 § 100. British and American Authorities. — The British and 
 American authorities are unanimous in support of the rule 
 as above stated.^ It is true that Sir John Nichol, in Curling 
 
 * Conrs de Code Napoleon, torn. 1, 
 no. 349. He says "that an establish- 
 ment of a Frenchman in a foreign 
 country, so long as he has not there 
 become naturalized, does not present 
 the characters of duration and fixity 
 which constitute domicil. A French- 
 man is always presumed to preserve 
 intention to return {esprit de retour), 
 and hence to be only more or less 
 temporarily in the foreign country." 
 No doubt such presumption is perfectly 
 valid ; but it is only a presumption of 
 fact, and, although strong, is not con- 
 clusive ; as appears from the Code Civil 
 itself, which provides (Art. 17) that 
 " the quality of Franyais will be lost, 
 1st, by naturalization acquired in a for- 
 eign country ; ... 3d, by every estab- 
 lishment set up in a foreign country, sans 
 esprit de retour." In construing this 
 article the French tribunals and writ- 
 ers have very properly held that ' ' es- 
 prit de retour " is to be presumed until 
 the contrary is shown. See Sirey et Gil- 
 bert, Code Civil Annoti, art. 17 and note 
 45 et seq. , and authorities there cited ; 
 also Demolombe, Cours de Code Napo- 
 leon, 1. 1, no. 181, and authorities cited. 
 
 5 Dalloz, verb. Dom. § 2, no. 20 ; 
 Massi et Verg^, Droit Civil Fran(;ais, 
 t. 1, § 80, p. 124, note 4 ; Demangeat 
 sur Foelix, t. 1, p. 57, note a, 3d ed. ; 
 
 Laurent, Principes de Droit Civil Fran- 
 jais, t. 2, no. 67 ; Sirey et Gilbert, Code 
 Civil Annote, art. 108 and cases cited 
 in note 21 et seq. ; also Theses pour le 
 Doctorat of Ancelle, p. 107 et seq., and 
 Chavanes, p. 120 et seq. 
 
 •J Infra, ch. 19. 
 
 ' In the presence of the large number 
 of cases in which freedom of change 
 has been recognized, it seems scarcely 
 worth while to cite any specific author- 
 ities upon this point. The following 
 may however be referred to: Udny v. 
 Udny, L. E. 1 Sch. App. 441, per 
 Hatherley, Ch. ; Hamilton v. Dallas, 
 L. R. 1 Ch. Div. 257, 269 ; Harral v. 
 Harral, 39 N. J. Eq. 279 ; Lestapies v. 
 Jngraham, 5 Pa. St. 71 ; Dale v. Irwin, 
 78 111. 160 ; Tanner u. King, 11 La. R. 
 175 ; Hennen v. Hennen, 12 id. 190 ; 
 Randolph v. Russell, 11 Tex. 460. 
 
 In Udny v. Udny Lord Hatherley 
 said : " It .seems to me consonant both 
 to convenience and to the currency of 
 the whole law of domicil to hold that 
 the man bom with a domicil may shift 
 and vary it as often as he pleases, indi- 
 cating each change by intention and 
 act, whether in its acquisition or aban- 
 donment." In Hamilton v. Douglas, 
 Bacon, V. C, in holding that a peer of 
 the British Parliament may acquire a 
 foreign domicil, said : "In my opinion 
 
 159 
 
§ 101.] THE LAW OP DOMICIL. [CHAP. IV. 
 
 V. Thornton, 2 doubted "whether a British subject is entitled 
 so far ' exuere patriam ' as to select a foreign domicil in 
 complete derogation of his British," and thereby render his 
 personal property in England liable to distribution according 
 to foreign law. But his doubts were distinctly overruled by 
 the High Court of Delegates in Stanley v. Bernes,^ and all 
 the subsequent cases have followed the doctrine of the latter 
 case. No such question should now arise, as modern improved 
 means of travel and views of government have brought nations 
 into a state of closer community and reciprocity, and have 
 induced those countries which clung most tenaciously to the 
 doctrine of perpetual allegiance, lately to surrender it. And 
 if a person is allowed to change his nationality at pleasure, 
 there seems to be no good reason why he should not be 
 allowed equal facility in changing his domicil. 
 
 § 101. Municipal Domicil. With respect to municipal domi- 
 cil the reason for the application of the rule is particularly 
 strong. In a Louisiana case ^ of that kind it was remarked : 
 "He may change it [domicil] at will, and any restraint 
 upon his choice would be an abridgment of his rights. . . . 
 The law seeks for the intention, and allows every citizen 
 freely to select his domicil accordingly as his interest, incli- 
 nation, or even caprice may direct." 
 
 it was abundantly .competent for him or of "Wife, Infant, Non Compos, Prisoner, 
 
 any other free man, peer or peasant, to Exile, etc., infra. 
 
 change his residence from his place of "2 Add. 6. 
 
 origin and take up a domicil in a for- 8 3 Hagg. Eocl. 373. See also Cro- 
 
 eign coiiutry." ker v. Marquis of Hertford, 4 Moore 
 
 With respect to persons incompetent P. C. 339. 
 to change their domicils at pleasure by i Tanner v. King, supra, and repeated 
 
 reason of not being sui juris, or being in Hennen v. Hennen, supra. 
 under constraint, see the various heads 
 160 
 
102. J CLASSIFICATION OP DOMICIL. [CHAP. V. 
 
 CHAPTER V. 
 
 CLASSIFICATION OF DOMICIL. 
 
 § 102. Various classifications of tlie different kinds of 
 domicil, with respect to the manner in which they may be 
 obtained, have been suggested ; but they are for the most 
 part arbitrary and unsatisfactory. Voet ^ divides domicil into 
 two kinds, voluntary and necessary ; but unfortunately ap- 
 pears to confine the latter to the domicil which was attributed 
 by the Roman law to a person whose presence at a place was 
 compulsory (e. g., a relegatus, or a soldier), and consequently 
 makes no provision for the domicil of dependent persons 
 (infants and married women). If, however, " necessary 
 domicil " is understood to include all cases in which domicil 
 is imputed by law to a person without his choice, this classi- 
 fication is exhaustive ; but whether it is at all serviceable — at 
 least without more minute subdivision — in helping us to any 
 clearer understanding of the subject, may well be doubted. 
 
 Story 2 classifies as follows : (1) domicil by birth ; (2) 
 domicil by choice ; and (3) domicil by operation of law. 
 " The last," he says, " is consequential, as that of the wife 
 arising from marriage." But so is " domicil by birth," or, 
 to use the more common phrase, " domicil of origin." The 
 first is therefore not properly a division by itself, but a sub- 
 division of the third. 
 
 Phillimore's ^ classification, which is carried out further, is 
 open to the same criticism, as well as others. He reduces 
 the different kinds of domicil to three : (1) domicil of origin 
 or birth {domidliv/m originis vel naturale') ; (2) domicil by 
 operation of law (neoessarium) ; (3) domicil of choice where 
 
 1 Ad Pand. 1. 5, t. 1, no. 93. by Bouhier, Ob3. sur la Gout, de Bourg. 
 
 = Conil. of L. § 49. This is substan- c. 22, p. 417, ed 1742. 
 tially the same division as that given ' Law of Dom. c. 5, pp. 25, 26 ; Id. 
 
 Int. L. vol. iv. ch. 7. 
 
 u 161 
 
§ 103.] THE LAW OP DOMICIL. [CHAP. T. 
 
 one is abandoned and another acquired (yoluntarium, adsci- 
 titium, domicile de choix). Domicil by operation of the law 
 he further subdivides by saying that it comprises two classes 
 of persons : (1) those who are under the control of another 
 and to whom the State gives the domicil of another ; (2) 
 those on whom the State affixes a domicil, (i.) by virtue of 
 the employment or office they hold, (ii.) by virtue of some 
 punishment inflicted upon them. Under the first class he 
 includes (1) the wife ; (2) the minor ; (3) the student ; (4) 
 the servant. Under the second class he includes (1) the 
 officer, civil or military ; (2) the prisoner ; (3) the exile. 
 
 In this subdivision he is unfortunate, inasmuch as many of 
 his subordinate classes are composed of persons whose domi- 
 cils are not necessarily fixed by operation of the law. Thus, 
 for example, that of the student is as much a domicil of 
 choice as that of his teacher. So too, while a person ap- 
 pointed for life to a civil office, which requires residence at a 
 particular place, takes by operation of law a domicil there, 
 one who receives a temporary or revocable appointment is 
 free to retain the domicil which he had at the time of his 
 appointment or to change it for another as he sees fit. And 
 similar criticisms may be made with regard to other subordi- 
 nate classes. 
 
 Another classification is that which Dicey * has apparently 
 followed ; namely, (1) domicil of origin, (2) domicil of choice, 
 and (-3) domicil of dependent persons. But this is not ex- 
 haustive, as it does not include some domicils which are fixed 
 by operation of law, — for example, of a person appointed for 
 life to a civil office requiring residence,^ or a prisoner for life 
 (according to some authorities), etc. 
 
 § 103. A proper classification ^ is doubtless desirable, but 
 
 * Dom. rules 5 to 11 and passim, the presumption that the official intends 
 
 For a discussion of several of the best- to do his duty and reside at the place 
 
 known classifications of domicil, see which the law points out. Such ap- 
 
 Dicey, Appendix, no. 2, pp. 339-341. peai-s to be the view of Bouhier, Obs. sur 
 
 Unless, perhaps, this may be looked la Cout. de Bourg. c. 22, p. 417, ed. 1742. 
 
 npon as a species of domicil of choice, i A favorite classification among the 
 
 inasmuch as the acceptance of such an older commentators upon the Roman 
 
 office is usually a matter of choice, law is the division of domicil into three 
 
 And perhaps, further, the rule may be kinds, viz., naturale, aceidentale, and 
 
 looked upon as having its foundation in commune, the first being domicil of ori- 
 
 162 
 
§ 103.J CLASSIFICATION OP DOMICIL. [CHAP. V. 
 
 it is not essential to a proper understanding of the subject. 
 It is proposed here not to attempt one, but simply to consider 
 the subject of domicil in what appears to be its natural order ; 
 namely, (1) domicil of origin ; (2) domicil of choice and the 
 requisites for a change of domicil, i.e. (a) abandonment of 
 domicil of origin and the acquisition of a domicil of choice, 
 or (6) the substitution of one domicil of choice for another ; 
 (3) reverter of domicil, or the rehabilitation of domicil of ori- 
 gin after the abandonment of domicil of choice ; (4) domicil 
 of particular persons ; (5) domicil at particular places, in- 
 cluding domicil in countries where authorization is required 
 and in barbarous and Mahometan countries ; and (6) the 
 criteria of domicil, or the evidence by which a domicil is 
 shown. 
 
 gin, although it is much confused with third was not properly domicil at all, 
 
 origo, or local citizenship, as it existed in hut patria in the hroad sense expressed 
 
 the Roman law. The second — domi- by Modestinus, " Eoma communis nos- 
 
 cilium habitationis, as it was frequently tra patria est." Dig. 50, t. 1, 1. 33. 
 
 called — included domicil of choice and See Corvinus, Jur. Rom. 1. 10, t. 39, 
 
 possibly necessary domicil, or at least and Christenaeus, Decis. Curise Belgio. 
 
 some kinds of necessary domicil. The vol. v. I. 10, t. 38 and 39, dec. 31. 
 
 163 
 
§ 104.J 
 
 THE LAW OP DOMICIL. 
 
 [chap. VI. 
 
 CHAPTER VI. 
 
 DOMICIL OP ORIGIN. 
 
 § 104. General Remarks. — Every person receives at birth 
 a domici], technically known among modern jurists as " domi- 
 cil of origin." ^ Says Lord Westbury in Udny v. Udny : " It 
 is a settled principle that no man shall be without a domicil ; 
 and to secure this result the law attributes to every individ- 
 ual as soon as he is born the domicil of his father if the 
 child be legitimate, and the domicil of his mother if illegiti- 
 mate. This has been called the domicil of origin, and is 
 involuntary." 
 
 We have seen that origo and domieilmm in the Roman law 
 were distinct ideas, and the collocation of them in the phrase 
 domicilium originis would have implied a contradiction.^ 
 
 1 Udny «. Udny, L. E. 1 Sch. App. 
 441, per Lord Westbury, p. 457 ; Llt- 
 tlefield V. Brooks, 50 Me. 475; Ab- 
 ington V. North Bridgewater, 23 Pick. 
 170; Crawford v. Wilson, 4 Barb. 604 ; 
 Matter of Scott, 1 Daly, 534 ; Matter 
 of Bye, 2 id. 525 ; Voet, Ad Pand. 
 1. 5, t. 1, no. 92 ; Mascardus, De 
 Probat. concl. 535, no. 1 ; Christe- 
 niBus, Decis. Curiae Belgio. vol. v. 1. 10, 
 t. 39, decis. 32, no. 13 ; Calvo, Manuel, 
 § 198 ; Savigny, System, etc., § 359 
 (Guthrie's trans, pp. 130, 131) ; West- 
 lake, Priv. Int. L. 1st ed. no. 33, rule 1 ; 
 Id. 2d ed. § 228 ; Dicey, Dom. p. 69. 
 
 Westlake, while correctly defining 
 (2d ed. § 228) domicil of origin to be 
 that which the law attributes to a per- 
 son at the time of his birth, thinks that 
 for some purposes (e. g., reverter) the 
 term should be understood as including 
 also the domicil which a person pos- 
 sesses at the time when he first becomes 
 capable of selecting one for himself, or, 
 
 164 
 
 in other words, his last derivative domi- 
 cil (2d ed. § 245). He cites no author- 
 ity, however, and certainly no British 
 or American case is to be found which 
 holds this doctrine, although a loose ex- 
 pression of Judge Rush in Guier v. 
 O'Daniel (1 Binney, 349, note), seems 
 to give some countenance to it ; but see 
 authorities collected in notes, infra, 
 §105. 
 
 Laurent, Principes de Droit Civil 
 Fran^ais, t. 2, no. 73, distinguishes be- 
 tween domicil of birth and domicil of 
 origin. By the former he understands 
 that which the child at his birth re- 
 ceives from his father, and by the latter 
 that which the father has at the mo- 
 ment when the child becomes free to 
 dispose of his person. The two are 
 identical provided the father retains the 
 same domicil throughout the entire in- 
 fancy of the child ; otherwise not. 
 
 ^ See supra, §§ 2-6. Savigny says : 
 "We must here notice particularly a 
 
§ 104.J 
 
 DOMICIL OP ORIGIN. 
 
 [chap. VI. 
 
 But the word origo, having dropped out of common use in the 
 sense in which it was understood among the Roman jurists, 
 has been adopted by modern jurists in an entirely new and 
 different sense. It is rarely — at least in our law — used 
 alone, but is joined with domicilium, in the phrase given 
 above, which, although open to criticism, is now in too gen- 
 eral use to be discarded. Phillimore prefers the phrase 
 " domicil of birth," and it is used by some ; but the phrase 
 " domicil of origin " has now obtained almost universal ac- 
 ceptance among the British and American authorities, and is 
 also generally used by the continental writers.^ 
 
 singular, but among modem writers a 
 very common, technical expression, — 
 domieilium originis. According to the 
 Roman usage, this collocation of words 
 is contradictory, as these expressions 
 indicated two different, independent 
 grounds of subjection. As used by the 
 modem jurists, it means the domicil of 
 a man which is constituted, not by his 
 own free will, but by his descent, and 
 which therefore in some sort rests on a 
 fiction. . . . The Bomans designate as 
 origo the citizenship acquired by his 
 birth. We call by the name of origo 
 the fiction that a man has a domicil at 
 the place where his father's domicil 
 was at the time of his birth." System, 
 etc. § 359 (Guthrie's trans, pp. 130 and 
 131). 
 
 This distinction is not nnfrequently 
 lost sight of by even the best writers. 
 Thus we find texts of the Roman law 
 relating to origo cited as authorities 
 upon domicil of origin ; e. g., even 
 Story, Confl. of L. § 46, and Philli- 
 more, Dom. nos. 34, 35, and 97. The 
 latter writer, however, in his work on 
 International Law (vol. iv. no. 69), 
 says : " But this expression ' domicil of 
 origin ' is incorrect, and tends to con- 
 found the distinct ideas of ' origin ' and 
 'domicil.' There is a time, indeed, 
 when they happen to be identical ; for 
 instance, a child bom in the State in 
 which his father is domiciled has, gen- 
 erally speaking, his origin and his dom- 
 icil in that State ; because in the case 
 
 of a person who has never acquired a 
 domicil, you must go back to the epoch 
 when a domicil was chosen for him ; 
 this epoch is the time of his birth. 
 This is the true meaning of ' origo,' to 
 which jurists have referred when they 
 have spoken of forum originis ; though 
 they have sometimes confounded origin 
 with the accidental place of birth, and 
 sometimes have not had a clear idea of 
 the relation which modem origin bears 
 to the Roman origo." And after call- 
 ing attention to Savigny's explanation 
 of origo, he proceeds: " The expression, 
 therefore, domicilium originis, is, with 
 reference to the language of the Roman 
 law, unintelligible, and confounds two 
 distinct and independent ideas ; while 
 with reference to modem law, it signi- 
 fies a domicil not founded upon choice, 
 but upon descent from a parent, and 
 therefore in some sort upon fiction." 
 But despite this explanation the same 
 learned writer again falls into the old 
 habit of citing Roman law texts cover- 
 ing origo as authorities upon the subject 
 of domicil (Int. L. vol. iv. nos. 69, 132). 
 ' Various other terms have been ap- 
 plied to this species of domicil ; viz., 
 "natural," "paternal," "original," 
 "native domicil," "domicil by birth," 
 "of nativity," etc. Another, and alto- 
 gether inexcusable, phrase was foraierly 
 used to a considerable extent in some of 
 the decided eases, as synonymous with 
 domicil of origin, viz., "forum originis," 
 e. g., by Lord Alvanley in Somerville 
 
 165 
 
§ 105.] 
 
 THE LAW OP DOMICIJi. 
 
 [chap. VI. 
 
 § 105. Domicil of Origin, how constituted. — " Domicil of 
 origin," according to Lord Alyanley in Somerville v. Somer- 
 ville,! " is that arising from a man's birth and connections." 
 It is imputed to a person by a fiction of law ,2 and hence, ac- 
 cording to some of the authorities, arises the peculiar signifi- 
 cance attached to it.* 
 
 A child, if legitimate, receives, as his domicil of origin, the 
 domicil of his father at the time of his birth,* and, if illegiti- 
 mate, the domicil of his mother at the time of his birth.^ 
 Ordinarily domicil of origin corresponds with the place of 
 birth ; but this is merely accidental, and a child born upon a 
 journey will have the same domicil of origin as if born at the 
 home of his parents.^ So too the child of an ambassador or 
 
 V. SomerviUe, 5 Ves. Jr. 750. "The 
 third rule I shall extract is that the 
 original domicil, or, as it is called, the 
 forum originis, or the domicil of origin, 
 is to prevail," etc. So, too, Sir John 
 Niohol in Curling ». Thornton, 2 Add. 
 Ecc. 6 ; Grier, J., in White v. Brown, 
 
 1 Wall. Jr. C. Ct. 217, and others. The 
 phrase, however, is no longer commonly 
 used. 
 
 * Supra, 5 Ves. Jr. 750. 
 
 « Savigny, System, etc. § 359 (Guth- 
 rie's trans, p. 132); Bouhier, Obs. sur la 
 Cout. de Bourg. c. 21, p. 183, ed. 1742; 
 Dicey, Dom. p. 69. It is not acquired, 
 but attributed by law. Udny v. Udny, 
 supra. 
 
 * Udny V. Udny, supra, and see 
 Lord FuUerton, in Comm'ra of Inland 
 Eev. V. Gordon's Ex'rs, 12 D. (So. Sess. 
 Cas. 2d ser. 1850) 657, 661. 
 
 * Udny V. Udny, supra ; Wolcott v. 
 Botfield, Kay, 534 ; Douglas v. Douglas, 
 L. K. 12 Eq. Cas. 617 ; Firebraee v. 
 Eirebrace, L. B. 4 P. D. 63 ; Wylie 
 V. Laye, 12 S. (So. Sess. Cas. 1st ser. 
 1834) 927; Prentiss «. Barton, 1 Brock. 
 389 ; Johnson v. Twenty-one Bales, 
 
 2 Paine, 601 ; s. c. Van Ness, 5; Hart 
 V. Lindsey, 17 N. H. 235 ; Ex parte 
 Dawson, 3 Bradf. 130 ; Matter of Scott, 
 1 Daly, 534 ; Matter of Bye, 2 id. 525 ; 
 Allen V. Thoraason, 11 Humph. 536 ; 
 Harkins v. Arnold, 46 Ga. 656 ; Powers 
 V. Mortee, 4 Am. L. Reg. 427 ; Story, 
 
 166 
 
 Confl. of L. § 46 ; Wharton, Confl. of 
 L. § 35 ; Westlake, Priv. Int. L. 1st ed. 
 no. 35, rule 2 ; Id. 2d ed. § 233 ; Dicey, 
 Dom. p. 69, rule 6 ; Foote, Priv. Int. 
 Jur. p. 9 ; Savigny, System, etc., § 353 ; 
 (Guthrie's trans, p. 100) ; Ecelix, Droit 
 Int. Priv. t. 1, no. 28 ; Bouhier, Obs. 
 sur la Cout. de Bourg. o. 22, p. 417, 
 ed. 1742 ; Calvo, Manuel, § 198 ; Id. 
 Diet. verb. Dom. 
 
 Some of the above authorities lay it 
 down that the domicil of origin of a 
 legitimate child is that of his parents at 
 the time of his birth, but this of course 
 means that of his father, inasmuch as 
 the wife has no other domicil than that 
 of her husband. See injra, § 209 et 
 seg. 
 
 8 Udny V. Udny, supra, per Lord 
 Westbury ; Story, Confl. of L. § 46 ; 
 Wharton, Confl. of L. § 37 ; Westlake, 
 Priv. Int. L. 1st ed. no. 35, rule 2 ; Id. 
 2d ed. § 234 ; Dicey, Dom. p. 69, rule 6; 
 Savigny, System, etc. § 353 (Guthrie's 
 trans, p. 100) ; Ecelix, Droit Int. Priv. 
 1. 1, no. 28 ; Calvo, Manuel, § 198 ; Id. 
 Diet. veri. Dom. See also Bluntschli, 
 Das Moderne Vblkerrecht, § 366. 
 
 8 SomerviUe v. Somerville, 5 Ves. 
 Jr. 750 ; Hardy v. De Leon, 5 Tex. 
 211 ; Bouhier, Obs. sur la Cout. de 
 Bourg. c. 21, p. 383, ed. 1742 ; Story, 
 Confl. of L. § 46 ; Dicey, Dom. p. 71. 
 Voet (Ad Pand. 1. 5, 1. 1, no. 91), speak- 
 ing concerning origo, says : "Est autem 
 
§ 105.] 
 
 DOMICIL OP ORIGIN. 
 
 [CHAP. VI. 
 
 consul (as was the case in Udny v. Udny) or a soldier sta- 
 tioned abroad,^ born in a foreign country would not take his 
 domicil of origin there, but where his father is domiciled at 
 the time of the birth of such child. The place of birth is, 
 however, ^rma /aae evidence of domicil.^ But this is mere 
 prima fades, subject to rebuttal by proof that the parent was 
 domiciled at the time elsewhere.^ In the absence of proof of 
 the actual domicil of the father at the time of the birth of the 
 child, the domicil of origin of the former, if it can be shown, 
 will doubtless be assumed to be the domicil of origin of the 
 latter. 10 A foundling takes his domicil of origin from the 
 place where he is found,ii subject to correction upon discovery 
 of his parentage,^^ or (his parents still continuing unknown) 
 a place of birth elsewhere than where he is found.^^ A post, 
 humous child, according to Mr. Westlake's i* opinion, follows 
 
 orlginis locua, in quo quis natus est, 
 aut nasci debuit, licet forte re ipsa alibi 
 natus est, matre in peregrinations par- 
 turiente." See also ChristensBus, Decis. 
 Curiae Belgic. vol. v. 1. 10, t. 39, decis. 
 33. 
 
 ' See Wylie v. Laye, 12 S. (So. Sess. 
 Cas. 1st ser. 1834) 927. 
 
 8 Bruce d. Bruce, 2 B. & P. 229 note; 
 Bempde v. Johnstone, 3 Ves. Jr. 198 ; 
 Hart V. Lindsey, 17 N. H. 235 ; Har- 
 vard College ■». Gore, 5 Pick. 370 ; 
 Thomdike v. Boston, 1 Met. 242 ; Dan- 
 bury V. New Haven, 5 Conn. 584 ; 
 Washington v. Beaver, 3 Watts & S. 
 548 ; Wayne Township v. Jersey Shore, 
 81* Pa. St. (32 Sm.) 264 ; Colburn v. 
 Holland, 14 Eich. Eq. 176 ; Hardy v. 
 De Leon, 5 Tex. 211 ; Ex parte Bluuier, 
 27 id. 731 ; Powers v. Mortee, 4 Am. 
 L. Beg. 427 ; Story, Confl. of L. § 46 ; 
 Dicey, Dom. p. 116. 
 
 9 See authorities cited in last note, 
 and Douglas v. Douglas, L. B. 12 Eq. 
 Cas. 617 ; also authorities cited in note 
 6, srv/pra. 
 
 1° It was so held in Shrewsbury v. 
 Holmdel (42 N. J. L. 373) with refer- 
 ence to settlement ; and undoubtedly 
 the same rule is applicable to domicil 
 in general. Indeed, it flows from the 
 principle (hereafter to be noticed, 
 
 § 115) that the domicil of origin of the 
 father is presumed to continue until it 
 is shown to be changed. 
 
 11 Savigny, System, etc. § 359 (Guth- 
 rie's trans, p. 132), citing Linde, Lehr- 
 buch, § 89 ; Fcelix, Droit Int. Priv. no. 
 28; Calvo, Manuel, § 198 ; Id. Diet. 
 verh. Dom. ; Westlake, Priv. Int. L. 1st 
 ed. no. 35, rule 2 ; Id. 2d ed. § 236 ; 
 Dicey, Dom. p. 69, rule 6 ; Foote, 
 Priv. Int. Jur. p. 9 ; Wharton, Confl. 
 of L. § 39, citing Heffter, pp. 108, 
 109. 
 
 ^ Apart from authority this follows 
 as a natural consequence. 
 
 1^ Westlake, vM swpra; Dicey, uH 
 supra ; Calvo, ubi supra. 
 
 1* This apparently originates with 
 Westlake, Priv. Int. L. 1st ed, no. 35, 
 rule 2. He is, however, followed by 
 Dicey, Dom. p. 69, rule 6, and Foote, 
 Priv. Int. Jur. p. 9. Calvo also takes 
 the same view (Manuel, § 198 ; Id. Diet. 
 verb. Dom.) apparently also following 
 Westlake. 
 
 Dicey also holds (Dom. pp. 69, 72, 73) 
 that a child bom illegitimate, but after- 
 wards legitimated ^cr subsequens matri- 
 monium takes as his domicil of origin 
 the domicil which his father had at the 
 time of the birth of the child. The 
 authorities which he cites do not bear 
 
 167 
 
§ 106.] THE LAW OP DOMICIL. [CHAP. VI. 
 
 the same rule as an illegitimate child, and takes the domicil 
 of his mother at his birth; and apart from authority this 
 seems reasonable. 
 
 § 106. Roman Law. — In the Eoman law sources no men- 
 tion is made of anything corresponding with what modern 
 jurists call domicil of origin, although it is probable, as 
 Savigny ^ points out, that the Roman jurists, if a man had 
 been found without citizenship or domicil, and for whom no 
 domicil could be shown . to have existed at any previous time, 
 would have resorted to the domicil which his father had at 
 the time of the birth of the son, in order to determine the 
 forum or the personal law of the latter. Or, in other words, 
 they would have imputed to the domicil of the father the 
 same legal consequences which moderns recognize as flowing 
 from it. This he considers a fair presumption, resulting as 
 well from the intrinsic reasonableness of the modern doc- 
 trine (at least as he develops it) as from the analogy fur- 
 nished by the case of the freedman.^ By manumission, 
 which was indeed the civil birth of the freedman, he took 
 as his own the domicil of his patron ; and this was communi- 
 cated to his children, and even to the slaves whom he in turn 
 manumitted. But he could nevertheless exchange this for 
 
 him out, and the proposition is by no father as his own, although that this 
 
 means clear. He rests it upon the prin- necessarily happens is denied by some, 
 
 ciple that a person thus legitimated But it by no means follows that his 
 
 "stands in the same position (after domicil of origin is affected. Suppose 
 
 legitimation) which he would have oc- that between the times of birth and 
 
 cupied if he had been born legitimate." marriage the father has changed his 
 
 But this is a fiction ; so is domicil of domicil ; or suppose that at the time of 
 
 origin. So that we have fiction resting marriage the child is of fnll age and has 
 
 npon fiction. Moreover, to maintain the actually established for himself a domi- 
 
 proposition it is necessaiy to hold that cil of choice. To attempt, particularly 
 
 domicil of origin may be shifted from in the latter case, to fix upon him, by a 
 
 one country to another, and that a per- double fiction, the suggested domicil of 
 
 son may have one such domicil at one origin, with all the adhesiveness im- 
 
 time and another at another time, inas- puted to domicil of origin in Udny ». 
 
 much as according to the authorities Udny, would seem to be going too far 
 
 above cited the domicil of origin of the and sacrificing considerations of general 
 
 child before legitimation is the domicil convenience to the logical development 
 
 of his mother at the time of his birth, of highly technical ideas. 
 Some singular results might follow. i System, etc. § 359 (Guthrie's trans. 
 
 It may be conceded that, upon the pp. 130, 131). 
 marriage of his parents, the child, if ^ See supra, § 5, note 1. 
 still under age, takes the domicil of his 
 
 168 
 
§ 107.] DOMICIL OP ORIGIN. [CHAP. VI. 
 
 a self-elected domicil of his own whenever he saw fit to do 
 so. These decisions of the Roman jurists, Savigny argues, 
 evidently rest upon the same principle as domicil of origin 
 in modern law, and " leave hardly a doubt that the Romans 
 would have given to the son of a free-born man, if he had ac- 
 quired no domicil of his own, that which his father had at his 
 birth." 
 
 § 107. Opinions entertained by Continental Jurists, Immu- 
 tability. — The doctrine of domicil of origin was one which 
 presented considerable difficulty to the Civilians, and gave 
 rise to no little contrariety of opinion among them.^ Some 
 undoubtedly held that it was, at least for some purposes, 
 immutable. But this view was by no means held by all ; and 
 even where it appears to be held there is a provoking loose- 
 ness of expression, and the grounds upon which it is put are 
 far from being either satisfactory or indeed apparent, al- 
 though it undoubtedly resulted from an imperfect notion of 
 origo, as it existed in the Roman law, and a consequent con- 
 fusion of origo and domicilium. This is especially noticeable 
 among the glossators and the writers who immediately suc- 
 ceeded them. Grotius, however, in an opinion^ written in 1613, 
 
 ^ Without citing in detail the an- municipal and personal burdens {which 
 
 thorities to particular points, it is suffi- shows that they had in view the Ro- 
 
 cient to refer to the foUowinjf : Bar- man doctrine of origo), and that they 
 
 tolus, Coram, in Cod. De Municip. 10, held the contrary with respect to jnris- 
 
 38 ; Azo, Summa, t. 38, no. 1 ; Chris- diction (which corresponds with what 
 
 tenseus, Decis. Curiie Belgic. vol. v. has already heen pointed out with re- 
 
 1. 10, t. 39, dec. 32, no. 7 et acq. ; spect to jurisdiction in the Roman law, 
 
 Gail, Pract. Obs. 1. 2, obs. 36 ; Zan- swpra, § 9). But they extended the 
 
 genis, De Except, pt. 2, c. 1, no. 68 doctrine of the immutability of domicil 
 
 et seq. ; Corvinus, Jur. Rom. 1. 10, of origin to other subjects, e. g. succes- 
 
 t. 38, 39 ; Henry, For. Law, p. 197 ; sion. See Zangerus, loc. cit. and au- 
 
 Fcelix, Droit Int. Friv. t. 1, p. 55, thorities there cited. Moreover, they 
 
 note 2, ed. 1856 ; Bouhier, Obs. sur la were inaccurate in two particulars, — 
 
 Cout. de Bourg. ch. 22, p. 417, ed. first, in calling origo by the name do- 
 
 1742. micilium, and second, in holding the 
 
 It is unnecessary, as well as improper, domicil of the father instead of his citi- 
 
 here to enter into any minute examina- zenship as the basis of origo. In these 
 
 tion of the positions of the Civilians on respects, at least, they departed from 
 
 this subject. It is sufficient to say that the teachings of the Roman law. 
 what appears most prominently in their ^ Henry, For. Law, p. 197, quoting 
 
 writings is that they held the doctrine at length the opinion of Grotius from 
 
 of the immutability of domicil of origin Hollaudsche Consultatien, vol. iii. p. 
 
 or natural domicil with reference to 528. 
 
 169 
 
§ 108.] THE LAW OP DOMICIL. [CHAP. VI. 
 
 declares that not only according to the general custom of the 
 Netherlands, but even of the whole world at that time, a man 
 might freely change his domicil of origin for another. The 
 doctrine of the immutability of domicil of origin appears 
 never to have been known in Prance,^ and it seems to have 
 been ehtirely abandoned by the later continental jurists. It 
 is true that some writers have considered that questions of 
 majority and minority, paternal power, and the like should 
 be determined by the law of the domicil of origin.* But this 
 relates to the legal consequences of domicil, and not to its 
 constitution and change. 
 
 § 108. Id. Constitution and Change. — With reference to 
 the constitution of domicil of origin, continental jurists are 
 substantially agreed ; namely, that it is the first domicil, or 
 that which the child receives at birth, and corresponds with 
 that which his parents have at the time of his birth, irre- 
 spective of the place of birth.^ Laurent, however, among the 
 later writers, holds that it is " that which the father has 
 at the moment when the infant becomes free to dispose of his 
 person." '■^ They are generally agreed, also, that domicil of 
 origin is of considerable importance, and is presumed to con- 
 tinue until it is shown to have been displaced by the ac- 
 quisition of a domicil of choice, the burden of proof resting 
 upon him. who denies the domicil of origin to be the true 
 ddmicil.^ 
 
 ' Denizart, veri. Dom. no. 11. 9 ; Tonllier, Droit Civil Franjais, t. 1, 
 
 * See Story, Confl. of L. ch. iv. and no. 371 ; Calvo, Manuel, etc. § 198 ; 
 
 authorities cited ; Fiore, Droit Int. Id. Diet. verb. Dom. See also the ad- 
 
 Priv. translated into French hy Pradier- tional authorities cited in note 3, infra, 
 Foder^, 1. 1, c. 1, and authorities cited ; " Principes de Droit Civil Franjais, 
 
 Savigny, System, etc. §§ 365, 380 ; and t. 2, no. 73. 
 
 Bar, § 52. » Mascardus, De Prohat. concl. 535, 
 
 1 Savigny, System, etc. § 359 (Guth- no. 1 ; Carpzoviusi Eespons. 1. 2, t. 
 
 Tie's trans, p. 130) ; Lauterbaeh, De 2, respons. 21, no. 14 ; Zangerus, De 
 
 Domicilio, no. 13 ; Bouhier, Obs. sur la Except, pt. 2, c. 1, nos. 10, 11; Voet, Ad 
 
 Cout. de Bourg. u. 21, p. 383, ed. 1742 ; Pand. 1. 5, t. 1, nos. 92, 97; Bouhier, 
 
 Boullenois, Personalite et B^alit^ des Obs. sur la Cout. de Bourg. c. 21, p. 383, 
 
 Lois, etc. tit. 1, c. 2, obs. 4, t. 1, p. ed. 1742 ; Meier, De Conflictu Legumi 
 
 53 ; 2 Domat, Pub. L. bk. 1, t. 16, p. 14, no. 1 ; Pothier, Intr. aux Cout. 
 
 3. 3, art. 10; Denizart, verb. Dom. 12 d'OrUans, no. 12; Henry, For. Law 
 
 and 13 ; Meier, De Conflictu Legum, p. (Opinion of Corvinus), p. 191; Denizart, 
 
 14 ; Foelix, Droit Int. Priv. t. 1, no. verb. Dom. no. 13 ; Merlin, Repertoire, 
 
 28 ; Zangerus, De Except, pt. 1, no. verb. Dom. § 2 ; Foelix, Droit Int 
 
 170 
 
§ 111. J DOMICIL OF ORIGIN. [OHAP. VI. 
 
 § 109. Domicil of Origin in British and American Jurispru- 
 dence. — The British and American authorities attach great 
 importance and peculiar qualities to domicil of origin, and lay 
 down with respect to it two principles, which have passed into 
 maxims ; namely, (1) Domicil of origin clings closely ; and 
 (2) Domicil of origin reverts easily. Both of these principles 
 are universally received in Great Britain and America. 
 
 § 110. Id. (1) Domicil of Origin clings closely.^ — As a 
 mere principle of evidence for the ascertainment of the ele- 
 ment of intention in a question of change of domicil, it may 
 be assumed that a person will be loath to leave, and eager to 
 return to, the land of his birth ; and that, therefore, when a 
 question arises between a domicil of origin and an acquired 
 domicil, in an otherwise doubtful case, where the facts are 
 apparently in equilibria, the presumption of intention should 
 be applied in favor of the former and against the latter. 
 This reasoning would apply, however, only where domicil of 
 origin happens — as it generally, although not universally, 
 does — to coincide with the land of birth and early connec- 
 tions. And thus far the propositions laid down above would 
 express presumptions of fact rather than rules of law. But 
 they have a much deeper and more artificial meaning, resting 
 upon the legal fiction which attributes to every person a 
 domicil of origin at the place where his parents happen to be 
 domiciled at the time of his birth, without any necessary 
 reference to the place of his birth and early education. Thus 
 in Udny v. Udny ^ the most extraordinary consequences are 
 attributed to Colonel Udny's domicil of origin in Scotland, 
 where he was neither born nor reared ; his father, though a 
 native of Scotland, having been at the time of his birth, and 
 for many years afterwards, a British consul in Italy. 
 
 § 111. Id. Udny v. Udny. — With respect to the first 
 maxim, namely, " Domicil of origin clings closely," the British 
 and American authorities are in entire accord in holding it, 
 
 Priv. no. 28 ; Demolombe, CouTS de ities cited, Sirey et Gilbert, Code Civil 
 
 Code Napoleon, t. 1, §§ 345, 348 ; Annot6, art. 102, notes 3, 8. 
 Laurent, Principes de Droit Civil Fran- ^ See generally the authorities cited 
 
 yais, t. 2, no. 74 ; Calvo, Manuel, under this and the succeeding sections, 
 etc. § 198 ; Id. Diet. verb. Dom., and 2 l. k. i Sch. App. 441. 
 many others. See, e. g., French author- 
 
 171 
 
§ lll.J THE LAW OP DOMICIL. [CHAP. VI. 
 
 although the degree of tenacity attributed by the late British 
 cases to domicil of origin is greater than that ever yet attrib- 
 uted to it by any decided case in this country. 
 
 In the late case of Udny v. Udny, decided in 1869 by the 
 House of Lords, it was held that domicil of origin, having its 
 foundation in a legal fiction, and being wholly independent of 
 the will of the subject of it, clings and adheres to him so 
 closely that he can never wholly free himself from it, and 
 that, upon the acquisition of a domicil of choice, his domicil of 
 origin is merely suspended or put in abeyance, to spring again 
 into full being upon his abandonment of the acquired domicil, 
 without any reference whatever to his ulterior intention. 
 Lord Westbury thus states the doctrine : " It is a settled 
 principle that no man shall be without a domicil, and to se- 
 cure this result the law attributes to every individual, as soon 
 as he is born, the domicil of his father, if the child be legiti- 
 mate, and the domicil of his mother, if illegitimate. This is 
 called the domicil of origin, and is involuntary. Other domi- 
 cils, including domicil by operation of the law as on marriage, 
 are domicils of choice. For as soon as an individual is sui 
 juris, it is competent to him to elect and assume another domi- 
 cil, the continuance of which depends upon his will and act. 
 When another domicil is put on, the domicil of origin is for 
 that purpose relinquished and remains in abeyance during 
 the continuance of the domicil of choice ; but as domicil of 
 origin is the creature of the law, and independent of the will 
 of the party, it would be inconsistent with the principles on 
 which it is by law created and ascribed, to suppose that it is 
 capable of being by the act of the party entirely obliterated 
 and extingTiished. It revives and exists whenever there is no 
 other domicil, and it does not require to be regained or re- 
 constituted animo et facto in the manner which is necessary 
 for the acquisition of a domicil of choice. . . . The domicil 
 of origin may be extinguished by the act of the law, as, for 
 example, by sentence of death, or exile for life, which puts an 
 end to the status civilis of the criminal ; but it cannot be 
 destroyed by the will and act of the party." 
 
 The doctrine thus laid down was necessary to the decision 
 of the case, and was substantially concurred in by Lords 
 172 
 
§ 113.] DOMICIL OP ORIGIN. [CHAP. VI. 
 
 Hatherley and Chelmsford.^ The case originated in the 
 Scotch courts, and came up to the House of Lords on appeal. 
 It has, however, been followed in several English decisions,^ 
 so that the British doctrine, thus clearly enounced, may be 
 considered as firmly established beyond the reach of change, 
 save by legislation. 
 
 § 112. Id. id. — In spite of the care with which Lord West- 
 bury distinguishes in this case between allegiance and domicil, 
 it is impossible not to discover the tincture of the doctrine 
 of perpetual allegiance running throughout it. The earliest 
 British cases,i in which peculiar adhesiveness was attributed 
 to domicil of origin, were prize cases, in which the question 
 of national character in time of war was involved. Clinging 
 as the British courts then did to the doctrine of the indeli- 
 bility of native allegiance, and at the same time endeavoring 
 to administer the more modern doctrine that national char- 
 acter in time of war depends upon residence or domicil, they 
 very naturally came to invest domicil of origin by way of 
 analogy with a prominence and controlling influence which, 
 if the question had first arisen in another class of cases, they 
 probably would not have attributed to it. But the doctrine 
 having been once adopted, was with such astonishing severity 
 of logic carried out to its utmost conclusions in TJdny v. 
 Udny, in which the question involved was a purely civil one, 
 — legitimation per subsequens matrimonium. 
 
 In 1870 British statesmen by treaty and statute finally 
 surrendered the principle of perpetual allegiance ; and it may 
 well be doubted whether, if the case had been decided a year 
 later, a different doctrine would not have been held, or at 
 least the doctrine stated in a more qualified form. 
 
 § 113. Id. Doctrine of Udny v. Udny not likely to be held 
 in America. Leaving out of view several dicta^ by — it must be 
 confessed — illustrious jurists, no American authority has ever 
 gone — perhaps it might be added ever will go — to the same 
 length as Udny v. Udny. It is true that the precise question 
 
 1 For the opinions of Lords Hatherley P. D. 63; Bradford ». Young, L. R. 29 
 and Chelmsford, see infra, §§ 193, 194.' Ch. D. 617. 
 
 2 King V. Foxwell, L. R. 3 Ch. D. i See infra, §§ 197, 198. 
 518 ; Firebraoe o. Firebrace, L. R. 4 i See infra, § 201, note 2. 
 
 173 
 
§ 114.] THE LAW OP DOMIOIL. ■ [CHAP. TI. 
 
 seems never to have been raised; but the American judges 
 have frequently, though in an oUter way, laid down broadly, 
 and without restricting its operation to the case of domicil 
 of origin, the principle that domicil once acquired continues 
 not only until it is abandoned but until another is acquired.^ 
 Moreover, since the doctrine of perpetual allegiance has been 
 abandoned by civilized nations, it is highly improbable that 
 an American court in a case of first impression, when untram- 
 melled by authority, would attribute greater adhesiveness to 
 original domicil than in the present state of international 
 law could be attributed to original allegiance. The doctrine 
 of reverter has been, up to this time at least, confined by 
 the American decisions to cases where there was an animus 
 revertendi to the domicil of origin.* 
 
 § 114. Id. Domicil of Origin adheres until another Domicil 
 is acquired. — But whether the doctrine of Udny v. Udny be 
 or be not accepted, the law, as held in Great Britain and 
 America, is beyond all doubt clear that domicil of origin 
 clings and adheres to the subject of it until another domicil 
 is acquired. This is a logical deduction from the postulate 
 that " every person must have a domici l somewhere." For 
 as a new domicil cannot be acquired except by actual resi- 
 dence cum animo manendi^ it follows that the domicil of 
 origin adheres while the subject of it is in transitu, or, if he 
 has not yet determined upon a new place of abode, while 
 he is in search of one, — "quaerens quo se conferat atque ubi 
 constituat." Although this is a departure from the Eoman 
 law doctrine, yet it is held with entire unanimity by the 
 British and American cases.^ It was first announced, though 
 
 2 See infra, § 201, note 4, v. De Bonneval, 1 Curteis, 856 ; Forbes 
 
 » See infra, id. v. Forbes, Kay, 341 ; Crookenden v. 
 
 1 See infra, § 127 et seq. Fuller, 1 Swab. & Tr. 441 ; Capdevielle 
 
 2 Somerville v. Somerville, 5 Ves. v. Capdevielle, 21 L. T. (n. s.) 660; 
 Jr. 750 ; Munro v. Munro, 7 CI. & F. Curling v. Thornton, 2 Add. 6 ; Burton 
 842; Aikmani). Aikmau, 3Macq. H. L. v. Fisher, Milward (Ir. Eccl.), 183; 
 Cas. 854 ; Moorhouse v. Lord, 10 H. L. Kennedy v. Kelley, 7 Ir. Jur. (n. s.) 326; 
 Cas. 272; Belli). Kennedy, L. R. 1 White ». Brown, 1 "Wall. Jr. C. Ct. 217 ; 
 Sch. App. 307 ; Udny v. Udny, id. 441 ; Prentiss v. Barton, 1 Brock. 389 ; John- 
 Attorney-General V. Dunn, 6 Mees. & son v. Twenty-one Bales, 2 Paine, 601 ; 
 W. 511 ; Attorney-General v. De Wahl- s. c. Van Ness, 5 ; Littlefield v. Brooks, 
 statt, 3 Hurl. & Colt. 374; De Bonneval 50 Me. 475 ; GUman o. Gilman, 52 id. 
 
 174 
 
§ 114.J DOMICIL OF ORIGIN. [CHAP. VI. 
 
 somewhat confusedly, by Lord Alvanley in Somerville v. 
 Somerville : 8 "The third rule I shall extract is 'that the 
 original dotuicil ... or the domicil of origin is to prevail 
 until the party has not only acquired another, but has mani- 
 fested and carried into execution an intention of abandoning 
 his formet domicil and taking another as his sole domicil." 
 The same idea has been expressed by Lord Wensleydale in 
 somewhat different phrase in Aikman v. Aikman : * " Exsjj' 
 man's domicil of origin must be pres umed to c ontinue until 
 he has acquired another s ole, domicil by actual residence with 
 the intention of abandoning his domicil of origin. This 
 change must be animo et facto, and the burden of proof un- 
 questionably lies upon him who asserts the change." Lord 
 Crauworth observed in the same case : " It is a clear prin- 
 ciple of law that the domicil of origin continues until another 
 is acquired; i.e., until the person has made a new home for 
 himself in lieu of the home of his birth." ° In America 
 similar language has been used.® 
 
 165 ; Hart v. Lindsey, 17 N. H. 235 ; 308 ; Succession of Franklin, 7 La. An. 
 
 Abington D. North Bridgewater, 23 Pick. 395 ; Heirs of Holliman v. Peebles, 1 
 
 170 ; Thorndike v. Boston, 1 Met. 242 ; Tex. 673 ; Hardy v. De Leon, 5 id. 211 ; 
 
 Opinion of the Judges, 5 id. 587 ; Kirk- RusseU v. Randolph, 11 id. 460 ; Gou- 
 
 land V. Whately, 4 Allen, 462 ; Hallet henant v. Cockrell, 20 id. 96 ; Tram- 
 
 V. Bassett, 100 Mass. 167 ; Bangs v. mel v. Trammel, id. 406 ; £x parte 
 
 Brewster, 111 id. 382 ; Dupuy v. Wurtz, Blumer, 27 id. 735 ; Cross v. Everts, 
 
 53 N. Y. 556 ; Crawford v. "Wilson, 4 28 id. 523 ; Powers v. Mortee, 4 Am. L. 
 
 Barb. 504 ; Brown v. Ashbough, 40 Reg. 427. Conira, Hicks v. Skinner, 72 
 
 How. Pr. 260 ; Boberti v. Methodist N. C. 1. 
 
 Book Concern, 1 Daly, 3 ; Graham v. * Supra. * Supra. 
 
 Public Administrator, 4 Bradf. 127 ; ^ The language of Lord Alvanley is 
 
 Matter of Stover, 4 Redf. 82 ; Von open to objection in that it seems to 
 
 Hoffman v. Ward, id. 244 ; Tucker v. imply that upon the acquisition of a 
 
 Field, 5 id. 139 ; Hood's Estate, 21 Pa. domicil of choice, =■, person may, if he 
 
 St. 106 ; Reed's Appeal, 71 id. 378 ; so elects, have two domicils, namely, a 
 
 Quimby J). Duncan, 4 Harr. (DeL) 383 ; domicil of origin and one of choice, and 
 
 Plnmmer v. Brandon, 5 Ired. 190 ; that this happens necessarily unless he 
 
 Home V. Home, 9 id. 99 ; Colbum v. intends his acquired domicil to be his 
 
 Holland, 14 Eieh. Eq. 176 ; Harkins v. sole domicil. But that such was not 
 
 Arnold, 46 Ga. 656 ; Smith v. Croom, his meaning is clearly shown by the 
 
 7 Fla. 81 ; Rue High, Appellant, 2 fact that in the same case he held that, 
 
 Doug. (Mich. ) 515 ; Kellogg v. Super- for the purpose which he was specially 
 
 visors, 42 Wis. 97 ; Layne v. Pardee, 2 considering, — succession, — a person 
 
 Swan, 232 ; Morgan v. Nunes, 64 Miss, .can have but one domicil. Lord Wens- 
 
 ^ See cases cited supra, note 2, a large number of which simply repeat the 
 language of Lord Alvanley. 
 
 175 
 
§ 115.] 
 
 THE LAW OF DOMICIL. 
 
 [chap. VI. 
 
 § 115. Id. Presumption against a Change of Comicil of 
 Origin. — Retui'ning now to the consideration of the maxim 
 as a principle of evidence upon the question of abandonment, 
 the presumption of law is against a change of domicil of 
 origin.i And the burden of proof rests upon him who im- 
 pugns domicil of origin ^ or asserts a change.^ This-presump- 
 
 leydale'.s use of the word " sole " is 
 open to the same criticism. Loi'd Cran- 
 worth's language better expresses the 
 principle, although perhaps the explana- 
 tory clause is liable to the objection that 
 it too closely identifies " home of biitli" 
 with domicil of origin, the latter being 
 in many cases a pure fiction and entirely 
 distinct from actual home. Lord Chan- 
 cellor Cairns in Bell v. Kennedy, says : 
 " The law is beyond all doubt clear 
 with regard to the domicil of birth, 
 that the personal staius indicated by 
 that term clings and adheres to the 
 subject of it until an actual change is 
 made by which the personal stahis of 
 another domicil is acquired." 
 
 1 Aikman v. Aikman, 3 Maeq. H. L. 
 Cas. 854 ; Moorhouse v. Lord, 10 H. 
 L. Cas. 272; The Lauderdale Peerage, L. 
 E. 10 App. Cas. 692; Anderson v. Laneu- 
 ville, 9 Moore P. C. C. 325 ; Hodgson v. 
 De Beauchesne, 12 id. 285 ; De Bonne- 
 val V. De Bonneval, 1 Curteis, 856 ; 
 Attorney-General v. Eowe, 1 Hurl. & 
 Colt. 31 ; Attorney-General v. DeWahl- 
 statt, 3 id. 374, per Pigott, B. ; Ennis v. 
 Smith, 14 How. 400 ; Dupuy v. Wurtz, 
 53 N. Y. 556 ; Tucker v. Field, 5 Eedf. 
 139 ; Hood's Estate, 21 Pa. St. 106 ; 
 Plummer v. Brandon, 5 Ired. 190 ; 
 Kelley's Ex'r v. Garrett's Ex'rs, 67 Ala. 
 304 ; Succession of Franklin, 7 La. An. 
 395 ; State v. Steele, 33 id. 910. 
 
 2 Hodgson V. De Beauchesne, supra. 
 ' Id; Aikman v. Aikman, supra; 
 
 Moorhouse v. Lord, supra ; Munro v. 
 Munro, 7 CI. & F. 842 ; Bell i-. Ken- 
 nedy, L. R. 1 Sch. App. 307 ; The 
 Lauderdale Peerage, supra ; Crooken- 
 den V. Fuller, 1 Swab. & Tr. 441 ;, 
 Douglas V. Douglas, L. E. 12 Eq. Cas. 
 617 ; In re Patience, L. E. 29 Ch. D. 
 976 ; Capdevielle v. Capdevielle, 21 
 
 176 
 
 L. T. (n. s.) 660 ; De Bonneval v. De 
 Bonneval, supra; Briggs v, Briggs, 
 L. E. 5 P. D. 163 ; Attorney-General 
 V. De Wahlstatt, supra ; Gillis v. GilUs, 
 Ir. E. 8 Eq. 697; Ennis v. Smith, supra ; 
 Harvard College v. Gore, 5 Pick. 370 ; 
 Dupuy V. Wurtz, supra; Plummer «. 
 Brandon, 5 Ired. 190; Cole o. Lucas, 2 La. 
 An. 946; Succession of Franklin, supra. 
 How this burden is discharged will 
 appear in detail hereafter ; but the fol- 
 lowing remarks are not out of place 
 here. Says Sir Herbert Jenner in De 
 Bonneval v. De Bonneval {supra) : " The 
 presumption of law being that the dom- 
 icil of origin subsists until a change of 
 domicil is proved, the onus of proving 
 the change is on the party alleging it, 
 and this onus is not discharged by 
 merely proving residence in another 
 place, which is not inconsistent with 
 an intention to return to the original 
 domicil ; for the change must be demon- 
 strated by fact and intention." Says 
 Eost, J., in Succession of Franklin 
 (supra) : " His domicil of origin was 
 in Sumner County, State of Tennessee ; 
 that domicil of course continued until 
 another was acquired animo et facto. 
 And the parties seeking to avail them- 
 selves of the change of domicil from 
 Tennessee to Louisiana, must prove it 
 by express and positive evidence ; so 
 long as any reasonable doubt remains, 
 the legal presumption is that it was not 
 changed." In the vei-y recent case of 
 The Lauderdale Peerage {supra) Lord 
 FitzGerald said : " It is not upon light 
 evidence or upon a light presumption 
 that we can act, but it must clearly ap- 
 pear by unmistakable evidence that the 
 party who has a domicil of origin in- 
 tends to part with it, and intends to 
 establish a domicil elsewhere." 
 
§ 116.] DOMICIL OF ORIGIN. [CHAP. VI. 
 
 tion is instanced by Voet * as one of the prohabiles eonfecturce 
 to which a judge must resort in determining doubtful or dis- 
 puted questions of domicil. It rests upon two underlying 
 principles (upon the first of which alone, however, Voet puts 
 it).^ For, in the first place, domicil of origin, like acquired 
 domicil, or indeed like any other thing which is once shown 
 to exist, is presumed to continue without change until the 
 contrary is shown.^ 
 
 But in the second place, keeping in view the principle 
 (which will be discussed hereafter) that domicil can be 
 changed only animo et facto, as a rule for the ascertain- 
 ment of the element of intention it is to be assumed, in 
 most cases at least, that one will very reluctantly and only 
 under the influence of the most cogent reasons abandon his 
 domicil of origin for another. " The existence of ordinary 
 family ties, such as are to be presumed under [most] cir- 
 cumstances to be of force independent of evidence, render 
 an attachment to such domicil probable. In all such cases, 
 therefore, the presumption of law is against an intentional 
 change of domicil, and ordinarily so ; for a change of dom- 
 icil supposes a severance, to a great degree at least, of all 
 those mutual ties which bind mankind together, and which 
 we all desire to retain, the dissolution of which is repugnant 
 to all our feelings." ^ 
 
 For such reasons, therefore, in most cases stronger evi- 
 dence of intention must appear in order to establish a change 
 of domicil of origin than will be required to show abandon- 
 ment of an acquired domicil.^ 
 
 § 116. Id. id. But this Presumption modified by Circum- 
 stances. — But the importance of domicil of origin in this 
 respect is somewhat modified by circumstances. For it may 
 sometimes happen that the individual whose domicil is in 
 
 * Ad Pand. 1. 5, t. 1, no. 97. continue until it is actually changed 
 
 6 Id., no. 92. by acquiring a domicil elsewhere." 
 
 « See infra, § 151 and notes. » Lord v. Colvin, 4 Drew. 366 ; 
 
 ' Hodgson V. De Beauchesne, 12 Drevon v. Drevon, 34 L. J. Ch. 129 ; 
 
 Moore P. C. C. 285. Lewis, Jr., Hood's Douglas v. Douglas, L. B. 12 Eq. Cas. 
 
 Estate, 21 Pa. St. 106, 115, says : " The 617 ; Hallet v. Bassett, 100 Mass. 167. 
 
 attachment which every one feels for his See also Anderson v. Laneuville, 9 Moore 
 
 native land is the foundation of the rule P. C. C. 325. 
 
 that the domicil of origin is presumed to 
 
 12 177 
 
§ 117.] THE LAW OF DOMICIL, [CHAP. VI. 
 
 question has been, at a very tender age, and before strong 
 attachments have had time to spring up, transplanted from 
 the land of his birth to another ; or he may during the whole 
 course of his previous life have had little, or indeed no con- 
 nection with the place where the law by its fiction attributes 
 to him a domicil. In such case the attachments which form 
 as the child grows up, would probably be assumed in favor 
 of his home in fact, and less than the usual quantum of evi- 
 dence be required to show a change of his domicil of origin. 
 " The evidence that a man intends to resign his domicil of 
 origin ought to be cogent in proportion to the improbability 
 of such desire. And the converse is true, — that if the proba- 
 bility is great, far less evidence may suffice." ^ 
 
 § 117. Id. id. id. — The subject is illustrated by the remarks 
 of Wickens, V. C, in Douglas v. Douglas : ^ " For many pur- 
 poses, no doubt, a domicil of origin requires more to change 
 it than a domicil of acquisition. Independently of any au- 
 thority, nothing is easier to understand than that a Scotchman 
 by birth considers himself to be a Scotchman in a much more 
 definite and solemn sense than that in which a Scotchman 
 who has acquired an English domicil by settling in England 
 considers himself to be an Englishman. But in this case, if 
 the testator's Scotch .domicil had been an acquired and not 
 an original domicil, it was so acquired as to resemble an 
 original domicil rather than an acquired one. For it can 
 hardly be doubted that from the age of twelve, or thirteen 
 at any rate, the testator had no idea of home except a Scotch 
 home, and thought of his father as a Scotch laird and nothing 
 else. Hence I conceive that if the testator's domicil of origin 
 had been English, the burthen on those who contend that he 
 changed his then Scotch domicil after his mother's death, 
 would be hardly lighter than if it had been Scotch, as I hold 
 it to have been." 
 
 The remarks of Lord Justice Clerk Inglis in Lowndes v. 
 Douglas 2 are to a similar effect. He said: "The domicil 
 of origin in this case was not of a sti-ong or deeply rooted 
 
 1 Sharpe v. Crispin, L. R. 1 P. & D. 2 24 D. (Sc. Sess. Cas. 2d ser. 1862), 
 611, 621, per Lord Penzance. 1391, 1406. 
 
 1 L. R. 12 Eq. Cas. 617, 642. 
 178 
 
§ 118.] DOMICIL OP ORIGIN. [CHAP. VI. 
 
 kind. The father of the testator was originally an English- 
 man, though resident in Scotland, and domiciled there at the 
 time of his son's, the testator's, birth. The testator's mother 
 ■was a Scotch woman, and the testator was not only born in 
 Scotland, but received the early part of his education there. 
 But he left Scotland at the age of ten, while still in statu 
 pupillari, and was taken by his parents to England, where 
 he received perhaps the most important part of his educa- 
 tion ; and his father and he himself became then domiciled 
 in England. It was not from Scotland, therefore, but from 
 England, that the testator went forth to seek his fortune in 
 the world. And therefore his domicil of origin in Scotland 
 was not of that strong kind to which so great effect is some- 
 times given, that nothing but the acquisition of a clear and 
 permanent domicil elsewhere can destroy it, and the slightest 
 appearance of abandonment of the acquired domicil and re- 
 turn to the place of domicil of origin suffices to revive it. 
 We have not the case of a man born in Scotland of parents 
 wholly connected with Scotland, receiving all of his education 
 in Scotland and going forth into the world from Scotland, 
 leaving behind him in Scotland his nearest friends and rela- 
 tives. The domicil of origin here is of a different kind alto- 
 gether, much more easily lost and not so easily regained." ^ 
 
 It was apparently the force of such considerations which 
 led Westlake * to suggest that, for the purpose of determin- 
 ing questions of the displacement and reverter of domicil of 
 origin, that term must be understood as meaning the domicil 
 which a person has when he first acquires the power of 
 changing his domicil for himself. While this suggestion is 
 not admissible in view of the authorities, it is at least a 
 strong protest against, and an evident attempt to qualify, 
 the rigid application, made by the British courts, of the 
 highly technical doctrine of domicil of origin. 
 
 § 118. Id. Fresumption applies also in favor of resumed 
 Domicil of Origin. — The maxim applies also to resumed 
 domicil of origin,^ — at least, as between the state or country 
 
 ' The original ia, " not so easily rec- ' Priv. Int. L. 2d ed. § 245. 
 ognized ; " which is evidently a misprint * See Moorhouse v. Lord, 10 H. L. 
 for "regained." Cas. 272. 
 
 17& 
 
§ 119.] THE LAW OP DOMICIL. [CHAP. VI. 
 
 of such domicil and a state or country in which the person 
 has never before been domiciled ; although it probably would 
 require less cogent evidence to show the reacquisition of a 
 former domicil of choice, even after the resumption of domicil 
 of origin, than to show the acquisition of an entirely new 
 one.2 
 
 § 119. Id, tJaually slighter Evidence required to show Re- 
 verter of Bomicil of Origin than Acquisition of a new Domi- 
 cil. — (2) Domicil of origin reverts easily} This maxim 
 also has both a technical and a natural side. The former 
 will be discussed hereafter in the chapter on Reverter of 
 Domicil, which it is, for various reasons, deemed best to post- 
 pone until some inquiry has been made into the requisites of 
 a change of domicil. The principle of evidence, however, 
 which underlies the maxim is so interwoven with what has 
 already been said on the subject of domicil of origin, that it 
 seems proper to consider it, at least to some extent, in this 
 chapter. 
 
 As evidence of intention, fewer circumstances are required 
 to show the resumption of domicil of origin than to show the 
 acquisition of a new domicil.^ This rests upon the general 
 presumption of attachment which usually, though not univer- 
 sally, exists towards one's domicil of origin. Says Shaw, 
 G. J., in Otis v. Boston : ^ "It is said that one's domicil of 
 
 2 See Lowndes v. Douglas, supra. 1 Bank. Beg. 90 ; Johnson v. Twenty- 
 
 1 Udny V. Udny, L. R. Sch. App. one Bales, 2 Paine, 601 ; s. o. Van 
 
 441 ; Hoskins v. Mathews, 8 De G. Nesa, 5 ; Otis v. Boston, 12 Cash. 44; 
 
 M. & G. 13, 16 ; KingB. Foxwell, L. E. Hallet D.Bassett, 100 Mass. 167 ; Mat- 
 
 3 Ch. D. 518 ; Firebrace v. Firehrace, ter of Wrigley, 8 Wend. 140 ; Miller's 
 
 L. R. 4 P. D. 63 ; The Indian Chief, Estate, 3 Eawle, 312 ; Reed's Appeal, 
 
 3 Eob. 12 ; La Virginie, 5 Bob. 98 ; 71 Pa. St. 378 ; Russell v. Randolph, 
 The Matchless, 1 Hagg. Adm. 97 ; Col- 11 Tex. 460 ; Mills®. Alexander, 21 id. 
 ville 11. Lauder, Morrison, Diet. Dec. 154 ; Story, Confl. of L. § 48. 
 Succession, App. no. 1 ; Robertson, 2 La Virginie, supra; Lord Advo- 
 Pers. Sue. p. 166 ; Lord Advocate v. cate v. liamont, supra; Donaldson v. 
 Lament, 19 D. (Sc. Sess. Gas. 2d McClure, 20 D. (Sc. Sess. Cas. 2d ser. 
 ser. 1857), 779 ; The Venus, 8 Cranch, 1867), 307, see infra, § 120, note 2 ; 
 253 ; Prentiss v. Barton, 1 Brock. 389 ; Lowndes v. Douglas, 24 id. (1862) 
 The Ann Green, 1 Gall. 274; The 1391, see sm^o, § 117; The Ann Green, 
 Francis, id. 614 ; Catlin v. Gladding, supra ; The Francis, supra ; Catlin v. 
 
 4 Mason, 308 ; White v. Brown, 1 Wall. Gladding, supra ; Otis v. Boston, supra. 
 Jr. 0. Ct. 217 ; Bs Wallcer, 1 Lowell, 8 12 Gush. 44, 50. 
 
 237 ; s. c. sub nom. Ex parte Wiggin, 
 180 
 
§ 120.] DOMICIL OP ORIGIN. [CHAP. VI. 
 
 origin is more easily regained than any other. This is only 
 one of those modes of approximating to the proof of fact and 
 intent, which constitute a change of domicil in a doubtful 
 case ; because, from the natural propensities of the human 
 mind, one will more readily be presumed to intend returning 
 to his earliest home than to a place of temporary abode. It 
 is but a slight circumstance, but resorted to in a nicely bal- 
 anced case where slight circumstances will turn the scale." 
 
 § 120. Id. id. The Principle a Relative One. — The principle 
 is, however, a relative one, and not applicable with the same 
 force to all cases. If domicil of origin corresponds with the 
 place of birth and education, with allegiance and the ties of 
 family relationship, etc., it is obviously more probable, under 
 a given state of facts, that a resumption of such domicil is 
 intended than if there exists nothing but the bald fiction of 
 domicil of origin to connect the person with the place to 
 which the change is alleged. Indeed, it is not the mere fact 
 of domicil of origin, which is, of itself, of value in determin- 
 ing intention, but the facts which usually attend domicil of 
 origin. These may vary in kind and degree, and with them, 
 of course, varies the value of the fact of domicil of origin in 
 assisting us to get at the intention. In Maxwell v. McClure ^ 
 the son of a poor laborer left Scotland at an early age and 
 went to England, where he engaged in business and acquired 
 wealth and social position. Subsequently, his house in Eng- 
 land having been taken by a railway company, he transferred 
 his household establishment to a mansion which he had 
 erected in Scotland. The circumstances (which need not be 
 given) tending to show his intention to retain his English 
 domicil were indeed strong, and it was held not to have been 
 changed. In the Court of Session ^ the effect of the fact that 
 
 1 6 Jur. (n. s. ) 407. that, according to a principle recognized 
 
 2 Suh now,. Donaldson v. McClure, in law, a party who returns to the place 
 see supra. The remarks of several o£ where he was bom is more readily to he 
 the Scotch judges are important, and presumed to have come there with a view 
 illustrate several points with respect to to permanent domicil than a party who 
 domicil of origin. They are therefore comes as a stranger. More slender cir- 
 here given at length. Lord President cumstances will imply a disposition to 
 McNeil says : " Then there is the dom- remain and become domiciled there. I 
 icU of origin. The influence of that believe it to be the disposition of the 
 circumstance in a case of this kind is people of this country as of other moun- 
 
 181 
 
§ 120.J 
 
 THE LAW OF DOMICIL. 
 
 [chap. VI. 
 
 his domicil of origin was Scotch was expressly considered and 
 discussed at some length, with the result that little or no 
 
 tainous countries, perhaps of all coun- 
 tries, that after going abroad in pursuit 
 of fortune they desire to return to the 
 land of their birth and to spend the 
 remainder of their days there in the 
 enjoyment of the fortunes they have ac- 
 quired elsewhere. The natives of this 
 country, more perhaps than those of any 
 country in the world, furnish examples 
 of this disposition. In every county 
 over the length and breadth of Scotland 
 great agricultural improvements, orna- 
 mented grounds, and elegant mansions 
 attest the success of our fellow-coun- 
 trymen in other lands, — at once the 
 monuments of and the fruits of their 
 industry and enterprise in every quarter 
 of the globe, — in the east, the west, 
 the north, and the south, — in India and 
 the West Indies, in northern Amer- 
 ica and southern Africa, in Australasia 
 and in China, under burning suns and 
 in frozen regions. There they have 
 sought and made their fortunes, but 
 they have not dwelt there to spend 
 them. They have returned to Scotland, 
 and have reverted to the domicil of their 
 origin ; these who have so exerted them- 
 selves — who have gone to great dis- 
 tances from home and realized a compe- 
 tency and returned to their native laud 
 — may readily be presumed to have 
 abandoned all intention of going back 
 to the distant countries they had left. 
 But in the state of relationship and 
 constant communication and intercourse 
 which subsist between this country and 
 England, and in the case of parties who 
 are related to England by strong ties, 
 who retain their friends and acquaint- 
 ance there, who have heen only a short 
 time absent, and can return at any time 
 to conduct their husiness there without 
 any difficulty whatever, the intention 
 permanently to remain in Scotland is 
 perhaps not to be so readily inferred in 
 such a case as in that other class of cases 
 to which I have alluded." 
 
 Lord Ivory says : "Domicil of origin 
 is always a circumstance of weight in 
 
 182 
 
 cases of this sort, but not of great 
 weight. It is generally looked upon as 
 one of the weaker circumstances, easily 
 obliterated and therefore not by itself 
 conclusive. Now, with reference to 
 the domidlium originis in the present 
 case it is to be observed that if it had 
 given rise to any continued connection 
 and intercourse with this country or 
 between the defender and his relations 
 in Scotland, its effect on the result of 
 the case might have been greater. But 
 as I read the evidence, there has been 
 no intercourse of any substantial kind 
 since 1813 — when the defender left 
 for Wigan — between him and his rela- 
 tions, who were of the humblest class ; 
 and when he left he was not of age. 
 He was the son of a laborer, and was 
 himself a laborer during all that period 
 of his life which he spent in his native 
 country. There were none of those ties 
 connected with his earlier history which 
 make a domicilium originis of impor- 
 tance. His native soU had been un- 
 grateful. He left it for another soil, 
 where he prospered, attained distinc- 
 tion, acquired friends and public station. 
 . . . Everything that could tie a man 
 to a place was to be found at Wigau, 
 and therefore I start in this case with 
 the sole conviction that his domicil of 
 origin is to be held entirely obliterated, 
 and that in its place there has been sub- 
 stituted a domicil resting on the most 
 solid basis that one can conceive." 
 
 Lord Curriehill says : " Considering 
 that the domicil which the defender is 
 alleged to have abandoned was in a 
 locality where from his boyhood he had 
 spent his life in actual and prosperous 
 business, and where he was enjoying the 
 statiis and society and the municipal 
 and political privileges to which he had 
 risen, I desiderate clear evidence of his 
 intention to abandon that domicil and 
 to change it for another domicil in a 
 locality where, so far as appears, he was 
 an entire stranger. . . . That evidence 
 does not appear to me to be much af- 
 
§ 120.] 
 
 DOMICIL OP ORIGIN. 
 
 [chap. VI. 
 
 weight was attached to it ; and in the House of Lords, where 
 the interlocutor of Court of Session was affirmed, no stress 
 whatever seems to have been laid upon it. 
 
 fected by the circumstance that the de- 
 fender's original domicil had been in 
 Scotland ; for although the abandon- 
 ment of the acquired domicil is more 
 easily presumed when the change of res- 
 idence is to the native country, such a 
 presumption can have but little opera- 
 tion in the present case, considering that 
 the defender had left his native parish 
 
 in early life without having ever been 
 in circumstances to form many ties to it, 
 and that, after more than the third of a 
 century spent by him in the country of 
 his adoption, there does not appear to 
 have been anything in his native parish 
 to attract him from the station and so- 
 cial position he had come to hold in 
 England." 
 
 183 
 
§ 122.] THE LAW OF DOMICIL. [CHAP. VII, 
 
 CHAPTER VII. 
 
 CHANGE OF NATIONAL AND QUASI-NATIONAL DOMICIL. 
 1. Acquisition of Domidl of Choice. 
 
 § 121. We now come to consider the subject of a change 
 of domicil,^ which may occur in either of two ways : (a) by 
 the acquisition of a domicil of choice, or (6), after a domicil 
 of choice has been abandoned, by the reverter of the domicil 
 of origin. It is proposed to consider the former branch of 
 the subject in this chapter, and to confine the discussion for 
 the present to cases of national and g'Masi-national domicil, 
 leaving the question of a change of municipal domicil for 
 subsequent discussion. 
 
 § 122. Domicil of Origin more difEcult to change than Ac- 
 quired Domicil. — Two points must be kept in view throughout 
 the discussion : (1) The acquisition of a domicil of choice 
 may be either (a) by the substitution of an acquired domicil 
 for domicil of origin, or (J) by the substitution of one ac- 
 quired domicil for another ; and for the reasons given in the 
 last chapter, domicil of origin is more difiicult to change than 
 acquired domicil. 
 
 A change of domicil is always presumed against ; ^ but this 
 
 1 This discussion has, of course, re- person ; so that, in inquiring coneern- 
 
 gard only to change of domicil of inde- iug the domicil of a dependent person, 
 
 pendent persons. The manner in which we are always driven hack to an inquiry 
 
 the domicil of a dependent person (mar- concerning the domicil of an indepen- 
 
 ried woman, infant, or, in some cases, dent person. 
 
 non-compos) is altered, will he consid- i Cases cited, supra, % 115, and 
 
 ered hereafter ; and it will be found that infra, § 151, and Mitchell v. United 
 
 whenever a change of the national or States, 21 Wall. 350 ; Desmare v. 
 
 quasi-national domicil of a dependent United States, 93 U. S. 605 ; White v. 
 
 person occurs, such change results from Brown, 1 Wall. Jr. C. Ct. 217 ; Bum- 
 
 ieither (a) the acquisition of a domicil of ham v. Rangeley, 1 Wood. & M. 7; Kil- 
 
 choioe by, or (6) the reverter of the bum v. Bennett, 3 Met. 199 ; Chioopee 
 
 domicil of origin of, an independent v. Whately, 6 Allen, 508 ; Mooar » 
 
 184 
 
§ 123.] CHANGE OP NATIONAL DOMICIL. [CHAP. VII. 
 
 presumption is particularly strong when the change in ques- 
 tion is in derogation of the domicil of origin, especially if the 
 domicil of origin corresponds with the place of birth and early 
 education.^ 
 
 § 123. National Domicil more difficult to change than quasi- 
 National, — (2) The change may be (a) from one sovereign 
 State to another, or (b) from one province or State to another 
 within the same sovereignty. The analogy of perpetual al- 
 legiance, together with some reasons drawn from the well- 
 known feelings of mankind, have led courts to insist upon 
 stronger facts and clearer evidence to establish a change to 
 a foreign country than will be required to establish a change 
 within a sovereign State.^ Says Kindersley, V. C, in Lord v. 
 Colvin : " Another principle is that which is referred to by 
 Lord Cranworth in Whicker v. Hume in the House of Lords, 
 namely, that it requires stronger and more conclusive evi- 
 dence to justify the court in deciding that a man has ac- 
 quired a new domicil in a foreign country, than would suffice 
 to warrant the conclusion that he has acquired a new domicil 
 in a country where he is not a foreigner. For instance, the 
 court would more readily decide that a Scotchman had ac- 
 quired a domicil in England than that he had acquired a domi- 
 cil in France." Lord Cranworth's language is this : " I think 
 that all courts ought to look with the greatest suspicion and 
 jealousy at any of these questions as to change of domicil into 
 a foreign country. You may much more easily suppose that a 
 person having originally been living in Scotland, a Scotchman, 
 means permanently to quit it and come to England, or vice 
 verad, than that he is quitting the United Kingdom in order 
 to make his permanent home where he must forever be a for- 
 eigner, and in a country where there must always be those diffi- 
 culties which arise from the complication that exists and the 
 
 Harvey, 128 Mass. 219; Nixon v. 124 (per Lord Cranworth); Attomey- 
 
 Pahner, 10 Barb. 175 ; Pilson v. Bu- General v. Pottinger, 6 Hurl. & Nor. 
 
 shong, 29 Gratt. 229 ; Lindsay v. Mur- 733 (per Pollock, C. B.); Hodgson v. 
 
 phy, 76 Va. 428 ; Tanner «. King, 11 La. De Beauchesne, 12 Moore P. C. C. 285 
 
 R. 175 ; Nugent v. Bates, 51 Iowa, 77 ; (per Lord Cranworth during the argu- 
 
 Keith V. Stetter, 25 Kans. 100. See also ment) ; Lord v. Colvin, 4 Drew. 366, 422. 
 
 Stoughton & Peck v. HiU, 3 Woods, 404. See same case, sub nom. Moorhouse v. 
 
 2 Swgra, § 115. Lord, 10 H. L. Cas. 272 ; Hegeman v. 
 
 1 "Whicker v. Hume, 7 H. L. Cas. Fox, 31 Barb. 475. 
 
 185 
 
§ 124.J THE LAW OF DOMICIL. [CHAP. VII. 
 
 conflict between the duties that you owe to one country and 
 the duties which you owe to the other. Circumstances may 
 be so strong as to lead irresistibly to the inference that a 
 person does mean quatenus in illo exuere patriam ; but that is 
 a presumption at which we ought not easily to arrive, more 
 especially in modern times, when the facilities for travelling 
 and the various inducements for pleasure, for curiosity, or 
 for economy so frequently lead persons to make temporary 
 residences out of their native country." 
 
 § 124. A Change of Domicil a Serious Matter, and presumed 
 against. — But in any case a change of domicil, whether domi- 
 cil of origin or of choice, national or g'Masi-national, is a very- 
 serious matter, involving as it may, and as it frequently does, 
 an entire change of personal law. The validity and construc- 
 tion of a man's testamentary acts and the disposition of his 
 personal property in case of intestacy ; his legitimacy in some 
 cases and, if illegitimate, his capacity for legitimation ; the 
 rights and (in the view of some jurists) the capacities of mar- 
 ried women ; jurisdiction to grant divorces, and, according to 
 the more recent English view, capacity to contract marriage, — 
 all these and very many other legal questions depend for their 
 solution upon the principle of domicil ; ^ so that upon the de- 
 termination of the question of domicil it may depend oftentimes 
 whether a person is legitimate or illegitimate, married or single, 
 testate or intestate, capable or incapable of doing a variety of 
 acts and possessing a variety of rights. To the passage quoted 
 in the last section Kindersley, V. C, adds : " In truth, to 
 hold that a man has acquired a domicil in a foreign country 
 is a most serious matter, involving as it does the consequence 
 that the validity or invalidity of his testamentary acts and the 
 disposition of his personal property are to be governed by the 
 laws of that foreign country. No doubt the evidence may be 
 so strong and conclusive as to render such a decision unavoid- 
 able. But the consequences of such a decision may be, and 
 generally are, so serious and so injurious to the welfare of 
 families that it can only be justified by the clearest and most 
 conclusive evidence." ^ And the remarks of his Honor might 
 
 1 See m^n'a, ch. 2. Cresswell Cresswell, in Crookcnden v. 
 
 2 Also quoted and approved ty Sir Fuller, 1 Swab. & Tr. 441. 
 
 186 
 
§ 125.J CHANGE OF NATIONAL DOMICIL. [CHAP. VII. 
 
 be extended, although with somewhat diminished force, to 
 smoe cases of quasi-nationsl domicil, where the change sought 
 to be established is between States or provinces under the 
 same general government, but having different systems of 
 private law, as for example between Scotland and England 
 or between Pennsylvania and Louisiana. Thus Lord Currie- 
 hill, in Donaldson v. McClure,* referring particularly to a 
 change of domicil between England and Scotland, says : " The 
 animus to abandon one domicil for another imports an inten- 
 tion not only to relinquish those peculiar rights, privileges, 
 and immunities which the law and constitution of the domicil 
 confers, — in the domestic relations, in purchases and sales, 
 and other business transactions, in political or municipal 
 status, and in the daily affairs of common life, — but also 
 the laws by which succession to property is regulated after 
 death. The abandonment or change of a domicil is therefore 
 a proceeding of a very serious nature, and an intention to 
 make such a change requires to be proved by very satisfactory 
 evidence." 
 
 § 125. Change of Domicil a Question of Act and Intention. — 
 All jurists agree that a ch ange of do micil , of whatever grade, 
 is a question of " act," or " fact, " and intention , and cannot 
 be accomplished without the concurrence of both.^ Pothier 
 
 ' 20 D. (Sc. Sess. Cas. 2d ser. 1857) neval, 1 Curteis, 856 ; Collier v. Eivaz; 
 
 307, 321. 2 id. 855 ; Craigie v. Lewin, 3 id. 435; 
 
 1 Mnnro 1!. Munro, 7 CI. & F. 842; Laneuville v. Anderson, 2 Spinks, 41; 
 
 Aikman u Aikman, 3 Macq. H. L. Cas. Burton v. Fisher, 1 Milw. (Ir. Eool.) 
 
 854 ; Whicker v. Hume, 7 H. L. Cas. 183 ; Comm'rs of Inland Eev. v. Gordon, 
 
 124; MoorhousBB. Lord, 10 id. 272; 12 D. (Sc. Sess. Caa. 2d ser. 1850) 
 
 Bell V. Kennedy, L. R. 1 Sch. App. 307 ; 657 ; Ennis v. Smith, 14 How. 400 ; Mit- 
 
 Udny «. Udny, id. 441; Hodgson v. De chell ». United States, 21 Wall. 350; 
 
 Beauchesne, 12 Moore P. C. C. 285 ; At- The Ann Green, 1 Gall. 274; Catlin v. 
 
 tomey-General v. Eowe, 1 Hurl. & Nor. Gladding, 4 Mason, 308 ; Bumham v. 
 
 31; In re Capdevielle, 2 Hurl. & Colt. Rangeley, 1 Wood. & M. 7 ; White 
 
 985; Hoskins W.Mathews, 8 De G.M. & v. Brown, 1 Wall. Jr. C. Ct. 217; 
 
 G. 13 ; Munroe v. Douglas, 5 Mad. 379; United States v. Penelope, 2 Pet. Adm. 
 
 Jopp V. Wood, 34 Beav. 88 ; s. c. on 438 ; Doyle v. Clark, 1 Flipp. 536 ; 
 
 appeal, 4 De G. S. & J. 616 ; Cockerell Wayne v Greene, 21 Me. 357 ; Brewer 
 
 ». Coekerell, 2 Jur. (n. s.) 727 ; Robins v. Linnasus, 36 id. 428; Warren v. 
 
 & Paxtoni>. Dolphin, 4 Jur. (n. s.) 267; Thomaston, 43 id. 406; Parsons v. 
 
 Lyall V. Paton, 25 L. J. Ch. (n. 8.) Bangor, 61 id. 457;Stockton». Staples, 
 
 746 ; Forbes v. Forbes, Kay, 341; Lord 66 id. 197; Leach «. Pillsbury, 16 N. H. 
 
 V. Colvin, 4 Drew. 366; Brown i). Smith, 137; Harvard College v. Gore, 5 Pick. 
 
 15 Beav. 444 ; De Bonneval v. De Bon- 370 ; Lyman v. Fiske, 17 id. 231 ; 
 
 187 
 
§ 125.] 
 
 THE LAW OP DOMICIL. 
 
 [chap. VII. 
 
 says : " II faut pour cette translation le concours de la volont^ 
 et du fait;" and Denizart puts it thus: "Deux choses sont 
 ndcessaires pour constituer le domicile : 1° I'habitation r^ele ; 
 et 2° la volont4 de le fixer au lieu que Ton habite." " Length 
 of residence will not alone effect the change ; intention alone 
 will not do it, but the two taken together do constitute a 
 change of domicil." ^ The French Code provides : " Le change- 
 ment de domicile s'op^rera par le fait d'une habitation rdele 
 dans un autre lieu, joint h I'intention d'y fixer son principal 
 ^tablissement." ^ In his report upon this article, the Tribune 
 Mouricault says : " L'intention, qui n'est point accompagnde 
 du fait, pent n'indiquer qu'un projet sans issue ; le fait, qui 
 n'est point accompagn^ de I'intention, pent n'indiquer qu'un 
 essai, qu'un d^placement passager, que I'dtablissement d'une 
 maison s^condaire." * 
 
 Opinion of the Judges, 5 Met. 587; 
 Otis V. Boston, 12 Cush. 44 ; Bulkley 
 D. Williamstown, 3 Gray, 493; Kirkland 
 v. Whately, 4 Allen, 462 ; Wilson v. 
 Teny, 11 id. 206 ; Whitney v. Sher- 
 borne, 12 id. Ill; Shaw v. Shaw, 98 
 Mass. 158 ; Eoss v. Eoss, 103 id. 575; 
 Bangs V. Brewster, 111 id. 382 ; Bor- 
 land V. Boston, 132 id. 89 ; Dnpuy v. 
 Wurtz, 53 N. Y. 556 ; Crawford v. 
 Wilson, 4 Barb. 504; Vischer v. Vischer, 
 12 id. 640 ; Hegemanw. Fox, 31 id. 475; 
 Brown v. Ashbough, 40 How. Pr. 260 ; 
 Isham V. Gibbons, 1 Bradf. 69 ; Graham 
 V. Public Adm'r, 4 id. 127 ; Black v. 
 Black, 4 id. 174 ; Be Stover, 4 Eedf. 
 82 ; Von Hoffman v. Ward, 4 id. 244 ; 
 Pfoutz V. Comford, 36 Pa. St. 420; 
 Eeed's Appeal, 71 id. 378 ; Carey's Ap- 
 peal, 75 id. 201 ; Hindman's Appeal, 
 85 id. 466 ; Casey's Case, 1 Ashmead, 
 126 ; McDaniel's Case, 3 Pa. L. J. 310; 
 State V. Frest, 4 Harr. (Del.) 538 ; Pil- 
 son V. Bushong, 29 Gratt. 229; Long v. 
 Eyan, 30 id. 718 ; Lindsay v. Murphy, 
 76 Va. 428; Pluraerr. Brandon, 5 Ired. 
 190; Horne v. Home, 9 Ired. 99; State 
 V. Hallet, 8 Ala. 159; Smith v. Dalton, 
 1 Cin. S. C. Rep. 150; Hayes v. Hayes, 
 74 111. 312; Hall v. Hall, 25 Wis. 600; 
 Vanderpool v. O'Hanlon, 53 Iowa, 246; 
 188 
 
 Hart V. Horn, 4 Kans. 232 ; Keith v. 
 Stetter, 25 id. 100; Adams v. Evans, 19 
 id. 174; Foster v. Eaton & HaU, i 
 Humph. 346 ; Layne v. Pardee, 2 Swan 
 (Tenn.), 232; Williams v. Saunders, 5 
 Cold. 60; Hairstoni). Hairston, 27 Miss. 
 704 ; Morgan v. Nunes, 54 id. 308; Tan- 
 ner V. King, 11 La. Eep. 175 ; Gravillon 
 V. Richards' Ex'rs, 13 id. 293; Cole v. 
 Lucas, 2 La. An. 946 ; McKowen v. Mc- 
 Guire, 15 id. 637; Sanderson v. Ralston, 
 20 id. 312; Heirs of Holliman w. Peebles, 
 1 Tex. 673 ; Mclntyre v. Chappel, 4 id. 
 187; Mills v. Alexander, 21 id. 154; Ex 
 parte Blumer, 27 id. 734 ; People v. Pe- 
 ralta, 4 Cal. 175 ; Dig. 50, t. 1, 1. 20 ; 
 Voet, Ad Pand. 1. 5, t. 1, no. 98; Do- 
 nellus, De Jure Civili, 1. 17, c. 12, no. 
 30 ; Zangerus, De Except, pt. 2, e. 1, 
 no. 12 ; Corvinus, Jur. Rom. 1. 10, t. 39 ; 
 Denizart, vert. Dom. nos. 7, 17, 18 ; 
 Pothier, Intr. aux Cout. d'Orldans, nos. 
 9, 14; Story, Confl. ofL. § 44 ; Dicey, 
 Dom. p. 73 et seg. ; Westlake, Priv. Int. 
 L. Ist ed. nos. 37-40; Id. 2d ed. §§ 229, 
 229 a, 242, 243. 
 
 '■' Collier v. Eivaz, 2 Curteis, 855, 
 slightly modified in Dupiiy v. Wnrtz, 
 53 N. Y. 556. 
 
 ' Art. 103. 
 
 * Stance du 18 Vent6se, An 11. 
 
§ 126.] CHANGE OP NATIONAL DOMICIL. [CHAP. VII. 
 
 Demolombe draws an ingenious and interesting parallel 
 between the acquisition of domicil and the establishment of 
 possession. He says:^ "The principle ... is that domicil 
 is formed by taking legal possession of the place in which 
 one wishes to establish himself ; and it is thus that the two 
 most important rules of possession are found applicable to 
 domicil. (1) Legal possession, civil possession, is acquired 
 only by fact and intention united, — '■corpore et animo, neque 
 per se corpore, neque per se animo ; ' ^ by fact, — that is to say, 
 by occupation; by intention, — that is to say, in general, by 
 will to have the thing for one's own, to keep it not for a 
 time, not precariously, as the hirer or the depositary, but on 
 the contrary to appropriate it in a manner permanent and 
 durable ; and here indeed is, as we shall see, the intention 
 which particularly characterizes the establishment of domi- 
 cil; this intention of the person who definitively adopts a 
 certain place for the purpose of being there held and fixed. 
 (2) Possession, once acquired, is preserved by intention 
 alone ; ' solo animo retinetur.' ^ In the same way domicil also 
 is preserved, as we have seen, distinct from and independent 
 of residence." 
 
 § 126. Id. — On the one hand the mere fact of the transfer 
 of bodily presence from one place to another will not work 
 a change ; ^ and on the other, while mere intention is sufficient 
 to retain a domicil already established,^ it is not sufficient to 
 establish a new one,^ no matter how strong that intention 
 
 6 Cours de Code NapoUon, t. 1, no. Int. L. Isted. no. 38; Demolombe, Cours 
 
 351. de Code Napoleon, t. 1, nos. 348, 351. 
 
 6 Dig. 41, t. 2, 1. 3, § 1. 8 Bell v. Kennedy, L. E. 1 Sch. App. 
 
 ' Code 7, t. 32, 1. 4:"Licet possessio 307; Collier v. Eivaz, 2 Cnrteis, 855, 
 
 nudo animo acquiri non possit, tamen supra; Brown u. Smith, 15 Beav. 444; 
 
 Bolo animo retineri potest." The President, 5 C. Rob. 277 ; Drevon 
 
 1 See anthorities cited, mfra, § 135. v. Drevon, 34 L. J. Ch. 129 ; Mitchell 
 
 2 White V. Brown, 1 Wall. Jr. C. Ct. v. United States, 21 Wall. 350; Johnson 
 217; Hayes v. Hayes, 74 El. 312 ; Eue v. Twenty-one Bales, 2 Paine, 601; s. o. 
 High, Appellant, 2 Doug. ( Mich. ) 51 5 ; Van Ness, 5 ; Penfield v. Chesapeake, etc. 
 Mclntyre v. Chappel, 4 Tex. 187; E. R. Co. 29.Fed. Eep. 494 ; Hallowell 
 Hardy V: De Leon, 5 id. 211, and an- v. Saco, 5 Greenl. 143; Greene o. Wind- 
 thorities cited, infra, § 151, note 6 ; Po- ham, 13 Me. 225 ; Gorham v. Spring- 
 thier, Int. anx Cout. d'OrUans, no. 9 ; field, 21 id. 58 ; Fayette v. Livermore, 
 Story, Confl. of L. § 44 ; Denizart, verb. 62 id. 229 ; Dnpuy v. Wurtz, 53 N. Y. 
 Domicile, nos. 8, 19 ; Westlake, Friv, 556 ; Chaine v. Wilson, 1 Bos. 673; 
 
 189 
 
§ 126.J THE LAW OF DOMICIL. [CHAP. VII. 
 
 may be^ or how solemnly expressed.^ Fact must concur 
 with intention, otherwise no change takes place. Sir William 
 Scott says, in " The President " : " A mere intention to remove 
 has never been held sufficient, without some overt act, being 
 merely an intention, residing secretly and undistinguishably 
 in the breast of the party and liable to be revoked every 
 hour ; " and he adds that even strong declarations of intention 
 would not suffice. Paulus decided, " Domicilium re et facto 
 transfertur, non nuda contestatione." ® Casey's case is a 
 strong illustration of this principle. The petitioner (in in- 
 solvency) having determined to remove from New York, 
 where he was domiciled, to Philadelphia and to reside there 
 permanently, sent his wife and family to the latter city, but 
 was himself detained in New York a month longer in the 
 adjustment of his affairs. The court, remarking that no other 
 weight could be attached " to his sending his wife and chil- 
 dren here except as a strong circumstance manifesting his 
 intention to remove," dismissed the petition on the ground 
 of want of jurisdiction, for which six months' residence was 
 required. Almost identical with this case is the very recent 
 case of Penfield v. The Chesapeake, etc. R. R. Co. in the U. S. 
 Circuit Court for the District of New York, in which the facts 
 were that a resident of St. Louis, Mo., having' formed the in- 
 tention of transferring his residence to Brooklyn, N. Y., in 
 pursuance of that intention sent his wife and family to the 
 latter city in August, 1883. Upon their arrival his wife 
 hired a house there, in which she and her children there- 
 after continued to live. The plaintiff himself did not come 
 to Brooklyn until January of the next year. Upon these 
 facts the court held that he was not a resident of the State 
 of New York prior to Nov. 30, 1883, the question being one 
 of limitation.^ 
 
 Black V. Black, 4 Bradf. 174; Lyle v. and many of the authorities cited, mpra, 
 
 Foreman, 1 Dall. 480; Casey's Case, 1 § 125, note 1. 
 Ashmead, 126 ; Einggold v. Barley, 5 * Forbes v. Fortes, Kay, 341. 
 Md. 186 ; State v. Frest, 4 Harr. (Del.) 6 Waller u. Lea, 8 La. Eep. 213 ; 
 
 538 ; Smith u. Groom, 7 Fla. 81; State Nelson v. Botts, 16 id. 596 ; Yerkes v. 
 
 V. Hallet, 8 Ala. 169 ; Smith v. Dalton, Brown, 10 La. An. 94. 
 1 Cin. S. C. Rep. 160 ; Hall v. Hall, 25 « Dig. 60, t. 1, 1. 20. 
 Wis. 600 ; Hart v. Horn, 4 Kans. 232 ; 'A case of municipal domicil, Bangs 
 190 
 
§ 128.] CHANGE OP NATIONAL DOMICIL. [CHAP. VII. 
 
 § 127. The requisite Pactum complete Transfer of Bodily Pres- 
 ence. — The requisite fact, ot factum, is the transfer of bodily 
 presence from the old place of abode to the new ; and this 
 factum must be complete.^ " T\-\q factum must be not. merely 
 an inchoate act, not merely the first step towards ^q factum, 
 but the completion of i)xQ factum by actual residence." " The 
 intention must be to leave the place where the party has ac- 
 quired a domicil and to go to reside in some other place as 
 the new place of domicil, or the place of new domicil," ^ and 
 the factum must be commensurate with it. Therefore it is 
 that a new domicil cannot be acquired in itinere, except in 
 cases of reverter, hereafter to be discussed. 
 
 § 128. Dictum of Sir John Leach in Munroe v. Douglas. — 
 A loose and obscure dictum of Sir John Leach in Munroe v. 
 Douglas! has given much trouble, and has misled several 
 eminent jurists into stating doctrine in entire conflict with 
 elementary principles and the great weight of the decided 
 cases. His language is as follows : " It is said that having 
 afterwards quitted India in the intention never to return 
 thither, he abandoned his acquired domicil, and that the fo- 
 rum originis revived. As to this point I can find no differ- 
 ence in principle between the original domicil and an acquired 
 domicil, and such is clearly the understanding of Pothier in 
 one of the passages which has been referred to. A domicil 
 cannot be lost by mere abandonment. It is not to be de- 
 feated animo merely, but animo et facto, and necessarily re- 
 mains until a subsequent domicil be acquired unless the party 
 die in itinere toward an intended domicil." The qualification 
 of death in itinere appears to be a singular one, and under 
 all the circumstances it is hard to understand exactly what 
 his Honor meant by it. It was a mere dictum, apparently 
 
 V. Brewster, 111 Mass. 382, is in con- Pothier says (loe. cit.) : "La volonte de 
 
 flict with these cases; hut the doctrine transferer notre domicile dans un autre 
 
 of the former is questionable, at least if lieu doit etre justifife. EUe n'est pas 
 
 extended beyond its particular facts, equivoque lorsque c'est un benefice, une 
 
 and probably would not be applied to charge, ou un autre emploi non amovible, 
 
 national or g'Masi-national domicil. qui nous y appelle. Sn ce cos, d&s que 
 
 1 Lyall V. Paton, 25 L. J. Ch. 746 ; nous y sommes arriYes nous y acqu^rons 
 
 Pothier, Intr. aux Cout. d'Orleans, no. domicile et nous perdons I'ancien." 
 15; Westlake, Priv. Int. L. 1st ed. no. ^ Lyall v. Paton, supra. 
 
 39, rule 6. But see also Id. 2d ed. § 244. l 6 Mad. 379, 404. 
 
 191 
 
§ 128.] 
 
 THE LiW OP DOMICIL. 
 
 [chap. VII. 
 
 thrown in out of an abundance of caution, as a possible quali- 
 fication of the general principle laid down, — probably to cover 
 the Scotch case of Colville v. Lauder ,2 — a case of reverter, 
 which had been cited in argument. There were, however, no 
 facts before his Honor to which the qualification could be 
 applied, as it was clear from all the evidence and was as- 
 sumed by the court that Dr. Munroe, whose domicil was in 
 question, did not die in itinere toward an intended domicil, 
 but while on a visit to his native land (Scotland), and it was 
 held that his acquired domicil in India continued. The 
 meaning of the Vice-Chancellor has been discussed at con- 
 siderable length by Kindersley, V. C, in Lyall v. Paton ^ and 
 
 2 Morrison, Succession, App. no. 1 ; 
 Eobertson, Pers. Sue. p. 166, and see 
 infra, § 129, note 2. 
 
 " Supra, Kindersley, "V. C, says : 
 " Eeliance is placed upon the dictum 
 of Sir John Leach in the case of Munroe 
 V. Douglas. lu that case, I may observe, 
 the gentleman in question, Dr. Munroe, 
 had acquired an Anglo-Indian domicil 
 hy long residence in India. He was in 
 the East India Company's service ; his 
 domicil of origin was Scotch ; he had 
 returned to England, and when in Eng- 
 land, owing to the state of his health, 
 he was in uncertainty whether he should 
 settle himself in England or in Scotland. 
 In that state ho went to pay a temporary 
 visit to a friend in Scotland, and while 
 on that visit he died in Scotland. Those 
 were the circumstances upon which the 
 argument and the judgment turned. 
 Sir John Leach made this observation, 
 and it is an observation relied upon : 
 ' A domicil cannot be lost by mere aban- 
 donment.' I think there is no doubt 
 that that is quite in accordance with 
 the law of domicil, at least as established 
 by the law of this country. He adds : 
 ' It is not to be defeated animo merely, 
 but animo et facto.' Nobody, I think, 
 will dispute that proposition. Then he 
 adds this, ' and necessarily remains 
 until a subsequent domicil be acquired.' 
 That, I think, is a proposition in accord- 
 ance also with the law of domicil held 
 by the courts of this country. Then he 
 
 192 
 
 adds this, ' unless the pai-ty die in itinere 
 towards an intended domicil.' Now, 
 that is the dictum upon which reliance 
 is very naturally and very properly 
 placed by the learned counsel for the 
 Crown ; and it is contended that that 
 is to be taken as an authority, at least 
 as indicating the opinion of Sir John 
 Leach, that if a party, having acquired 
 a certain domicil different from his 
 domicil of origin, leaves the country 
 where he has acquired the domicil with 
 the intention of acquiring a domicil in 
 another country ; if he sets out upon 
 the journey towards that other country, 
 though he never arrives there, dying in 
 itinere, he does acquire the domicil 
 which he intended to acquire. That is 
 the view which is taken of that dictum. 
 " I confess it appears to me, when the 
 language is examined, that it is, to say 
 the least, somewhat doubtful whether the 
 language really does import that opinion, 
 especially when I take it coupled with 
 the argument of counsel, which was a 
 very elaborate and learned argument, re- 
 ferring to authorities of all kinds and 
 from all quarters, the object of it being 
 to show that if a party has. acquired a 
 domicil, and, intending to abandon that 
 domicil and acquire another, starts upon 
 his journey or voyage towards that dom- 
 icil, but dies in itinere, the domicil of 
 origin will revert. That was the con- 
 tention that was strongly labored for by 
 the learned counsel. The argument is 
 
§ 128.] 
 
 CHANGE OF NATIONAL DOMICIL. [CHAP. Til. 
 
 by other judges in other cases, and various conjectures have 
 been started ; but the obscurity still remains, and the case has 
 
 extremely long, and I do not think it 
 necessary to occupy time by referring to 
 it in detail to show that that was the 
 labored object of counsel in using that 
 argument. The observation of Sir John 
 Leach, no doubt, had reference to the 
 argument used and the cases cited in 
 support of that argument. 
 
 " Now, what is it that Sir John Leach 
 says ? "What is his general proposi- 
 tion ? And then, what is the excep- 
 tion to it, if there be an exception ? 
 He says : ' A domicil cannot be lost by 
 mere abandonment ; it is not to be de- 
 feated animo merely, but animo etfado, 
 and necessarily remains,' — that is, the 
 old domicil remains, — ' until a subse- 
 quent domicil be acquired.' Now, what 
 is the exception to that ? — ' unless the 
 party die in itinere toward an intended 
 domicil.' So that he says you do not 
 acquire the new domicil by dying in 
 itinere towards an intended domicil ; 
 but the effect of that is that the old 
 domicil does not remain. The domicil 
 may be abandoned, but Sir John Leach 
 may have considered that the argument 
 was a good argument that the domicil 
 of origin would revert in such a case. 
 That, I believe, is the doctrine of the 
 civil law, and it appears to be held by 
 some at least of the American jurists. 
 But, however, let me assume that the 
 proposition which is supposed to be 
 contained in this dictum of Sir John 
 Leach was a proposition which he meant 
 to maintain or to indicate. I think that 
 it is, to say the least, a proposition ex- 
 tremely questionable. It is admitted 
 on aU hands and by all the authorities, 
 it is admitted by this very judgment of 
 Sir John Leach, in Munroe v. Douglas, 
 that in order to change the domicil there 
 must be a concurrence of two things, — 
 the animus and the factum, — there 
 must be the intention and there must 
 he the act done. 
 
 " Now, what must be the intention ? 
 The intention must be to leave the 
 
 place where the party has acquired a 
 domicil, and to go to reside in some 
 other place as the new place of domicil, 
 or the place of new domicil. That is 
 the intention supposed. Then must not 
 the factum be commensurate with that ? 
 Must it not be to the same effect as the 
 intention ? And taking the first step 
 towards the factum is not the factu/in ; 
 the setting out for the purpose of going 
 to reside in another country is not re- 
 siding in another country. And surely 
 the factum which is referred to when 
 yon say there must be the animus and 
 the factu/m combined, is the actual resi- 
 dence in the other country. That is 
 the/artMWi, and not the mere factum, of 
 setting out with the intention of arriv- 
 ing, some day or other, in that country." 
 And after commenting upon Attorney- 
 General V. Dunn, 6 M. & W. 511, and 
 Munro v. Munro, 7 CI. & F. 842, he 
 says : " What Lord Gottenham there 
 says [Munro v. Munro] with regard to 
 the abandonment of domicil of origin 
 and acquiring a new one, appears to me, 
 according to our law, to apply with 
 equal force to an acquired domicil, that 
 in order to abandon that and acquire a 
 new one, there must be le concours de 
 la volants et dufait ; that is, the factum 
 and the animus must together combine ;' 
 and the factum must be not merely an 
 inchoate act, not merely the first step 
 towards the factum, but the completion 
 of the factum by actual residence." 
 
 In this case Lyall, the testator, had 
 a Scotch domicil of origin, but acquired 
 a domicil in India, and after residing 
 there for upwards of twenty years, he 
 sailed from India in a vessel bound for 
 an English port and died in itinere. 
 Vice-Chancellor Kindersley held that 
 even if his intention had been to settle 
 in England his Indian domicil would 
 have adhered to him until his actual ar- 
 rival in England, but at the same time 
 held that there was not sufficient evi- 
 dence of such intention. 
 
 13 
 
 193 
 
§ 129.] 
 
 THE LAW OP DOMICIL. 
 
 [chap. VII. 
 
 been so much shaken by criticism as to be now of little, if of 
 any, authority. 
 
 § 129. Wood, V. C, in Forbea v. Forbes. 'Wharton. 'West- 
 lake. — In Forbes v. Forbes i (1854) Wood, V. C, was, how- 
 ever, misled by it into laying down as a settled principle, 
 " that a new domicil cannot be acquired except by intention 
 and act, animo et facto ; and apparently if a man be in itinera 
 it is a sufficient fact for this purpose (see Sir John Leach's 
 judgment in Munroe v. Douglas)." It will be observed that 
 this dictum is much broader than that of Sir John Leach, who 
 limited the doctrine to the case of one dying in itinere. 
 Subsequently, however, in Udny v. Udny^ (1869), Vice-Chan- 
 
 1 Kay, 341. 
 
 2 L. R. 1 Seh. App. 441, 449. " It is 
 said by Sir John Leach that the change 
 of the newly acquired domicil can only 
 he evidenced by an actual settlement 
 elsewhere, or (which is, however, a re- 
 markable qualification) by the subject 
 of the change dying in itinere when 
 about to settle himself elsewhere. But 
 the dying in itinere to a wholly new 
 domicil would not, I apprehend, change 
 a domicil of origin if the intended new 
 domicil were never reached. So that at 
 once a distinction- is admitted between 
 what is necessary to reacquire the Origi- 
 nal domicil and the acquiring of a third 
 domicil. Indeed, the admission of Sir 
 John Leach seems to have been founded 
 on the actual decision of the case of 
 Colville V. Lauder, cited in full in Mun- 
 roe V. Douglas from the Dictionary of 
 Decisions. In that case a person of 
 Scottish origin became domiciled in St. 
 Vincent, but left that island, writing to 
 his father and saying that his health 
 was injured, and he was going to Amer- 
 ica, and that if he did not succeed in 
 America he would return to his native 
 country. He was drowned in Canada, 
 and some memoranda were found indi- 
 cating an intention to return to Scot- 
 land, and it was held that his Scottish 
 domicU had revived." And after dis- 
 cussing at considerable length the sub- 
 ject of reverter (for his remarks see infra, 
 § 193), he concluded: "It appears to 
 
 194 
 
 me, however, that each acquired domicil 
 may be also successively abandoned 
 simpliciter, and that thereupon the orig- 
 inal domicil simpliciter reverts. " Lord 
 Chelmsford says in the same case : "Sir 
 John Leach, V. C, in Munroe v, Doug- 
 las, held that in the case supposed the 
 acquired domicil attaches to the person 
 till the complete acquisition of a subse- 
 quent domicil, and (as to this point) 
 he said there was no difference between 
 the original domicil and an acquired 
 domicil. His Honor's words are, etc. 
 . . . There is an apparent inconsistency 
 in this passage, for the Vice-Chancellor 
 having said that a domicil necessarily 
 remains until a subsequent domicil be 
 acquired animo et facto, added, ' unless 
 the party die in itinere towards an in- 
 tended domicil ;' that is, at a time when 
 the acquisition of the subsequent dom- 
 icil is incomplete and rests in intention 
 only." And after stating his opinion 
 that an acquired domicil may be lost by 
 mere abandonment, he continues: "Sir 
 John Leach seems to me to be incorrect 
 also in saying that in the case of the 
 abandonment of an acquired domicil 
 there is no difference in principle be- 
 tween the acquisition of an entirely new 
 domicil and the revival of the domicil 
 of origin. It is said by Story, in § 47 
 of his Conflict of Laws : ' If a man has 
 acquired a new domicil dift'erent from 
 that of his birth, and he removes from 
 it with an intention to resume his native 
 
§ 130.] 
 
 CHANGE OF NATIONAL DOMICIL. [CHAP. VII. 
 
 cellor Wood, then Lord Chancellor Hatherley, seems to have 
 recanted this doctrine, and indeed used language apparently 
 wholly in conflict with it. Eesting upon these dicta, a dis- 
 tinguished American law-writer, Dr. Wharton, in his work 
 on the Conflict of Laws,^ has fallen into the same error. He 
 says : " Even when the point of destination is not reached, 
 domicil may shift in itinere if the abandonment of the old 
 domicil and the setting out for the new are plainly shown." 
 Mr. Westlake also, in the second edition of his work on Pri- 
 vate International Law,* in • speaking of change from one 
 domicil of choice to another, says : " In the event of death in 
 itinere, the last domicil is the one toward which the person is 
 journeying." 
 
 § 130. Domicil cannot be changed in itinere. — But not- 
 withstanding these expressions of opinion by eminent jurists, 
 the decided cases both in England and in this country appear 
 
 domicil, the latter is reacquired even 
 while he is on his way, in itinere ; for it 
 reverts from the moment the other is 
 given up.' This certainly cannot be 
 predicated of a person journeying to- 
 wards a new domicil which it is his inten- 
 tion to acquire." Lord Westbury, in the 
 same case, while not criticising Munroe 
 V. Douglas, lays down doctrine which 
 cannot be reconciled with the dictiim 
 of Vice-Chancellor Leach. In Harvard 
 College V. Gore, Putman, C. J., speaking 
 of the same dictum, says : " This quali- 
 fication may be doubted, as it seems iu a 
 measure inconsistent with the rule that 
 the act and intention must unite in order 
 to effect a change." 
 
 ^ § 58, 2d ed. He adds in a foot- 
 note : " If an emigrant from Germany, 
 for instance, marries or dies on ship- 
 board, after having severed all connec- 
 tion with his native land, and completed 
 his arrangements for a settlement in 
 New York, I believe that his domicil 
 would, in this country, be held to be in 
 New York." But see Graham v. The 
 Public Administrator, infra, iu which 
 this point was decided the other way. 
 
 * § 244. For this he cites Munroe v. 
 Douglas and Forbes v. Forbes, and adds : 
 " This part of Leach's doctrine does not 
 
 seem to have been censured iu Udny v. 
 Udny." (But see the passages quoted 
 from that case, supra, note 2, and in- 
 fra, § 193 et seq. ) On the contrary, the 
 proposition as stated seems to be partic- 
 ularly in conflict with the language 
 held in Udny v. Udny, as well as the 
 general doctrine of that case. More- 
 over, as Kindersley, V. C, points out 
 (Lyall V. Paton, supra). Sir John Leach 
 does not say that upon death in itinere 
 the intended domicil attaches, but that 
 the abandoned domicil no longer re- 
 mains. He may, for all that appears to 
 the contrary, have meant that the dom- 
 icil of origin reverts, which would be 
 in accordance with Udny v. Udny, al- 
 though he was not so understood in that 
 case. Furthermore, Forbes v. Forbes 
 does not fit Westlake's proposition as 
 stated. It rather goes beyond it, and 
 does not sustain the qualification of 
 death in itinere. However, as has been 
 pointed out, Vice-Chancellor Wood 
 changed his opinion when he became 
 Lord Chancellor Hatherley. And after 
 all, it certainly cannot be accurate to 
 say, stretching fiction to its utmost, 
 that whether a person is domiciled in a 
 State or country at a particular time 
 depends upon his death. 
 
 195 
 
§ 131.J THE LAW OF DOMICIL, [CHAP. 
 
 VII. 
 
 to have overwhelmingly settled the doctrine precisely the 
 other way, and the general rule — to which, however, reverter 
 of domicil is an exception — is now thoroughly established, 
 that domicil cannot be acquired in itinere} 
 
 § 131. Id. In Lyall v. Paton,^ Lyall, the testator, had 
 a Scotch domicil of origin, but had acquired a domicil in 
 India, and after residing there for upwards of twenty years 
 he sailed from India in a vessel bound for an English port 
 and died in itinere. Kindersley, V. C, although deeming the 
 evidence of his intention to settle in England insufficient, 
 held that even if such had been his intention his Indian domi- 
 cil would have adhered to him until his actual arrival in 
 England. In a New York case, Graham v. The Public Ad- 
 ministrator,2 the deceased having died at New York on her 
 way from Scotland, her domicil of origin, to Canada, where 
 she intended to settle, the court held that, " not having reached 
 her proposed home," and the rule that domicil can be acquired 
 only animo et facto not having been satisfied, her Scotch dom- 
 icil remained, and her estate was distributable according to 
 the Scotch law. In Bell v. Kennedy,^ Lord Chelmsford says : 
 " It is necessary to bear in mind that a domicil, although in- 
 tended to be abandoned, will continue until a new domicil is 
 
 1 Bell V. Kennedy, L. E. 1 Sch. App. of the concurrence of residence and 
 
 307 ; Udny v. Udny, id. 441 ; Lyall v. intention." 
 Paton, 25 L. J. Ch. 746 ; Littlefield i Supra. = Supra. 
 
 V. Brooks, 50 Me. 475 ; Harvard Col- ^ Supra. In the same case Lord 
 
 lege V. Gore, 5 Pick. 370 ; Otis v. Bog- Colonsay says : "There are dicta to the 
 
 ton, 12 Gush. 44; Shaw v. Shaw, 98 effect that if Scotland had been the dom- 
 
 Mass. 158 ; Borland v. Boston, 132 id. icil of origin, and he had bid a final adieu 
 
 89 ; Graham v. The Public Administra- to Jamaica and saUed for Scotland and 
 
 tor, 4 Bradf. N. Y. 127 ; Lyle v. Fore- had diedm itinere, the domicil of origin 
 
 man, 1 DaU. 480; Cross v. Black, would have been held to have revived; 
 
 9 GUI & J. 198 ; Ringgold v. Barley, but there is no authority for saying that 
 
 5 Md. 186 ; Home v. Home, 9 Ired. 99 ; a person dying in transitutroia a domicil 
 
 Smith ■». Groom, 7 Fla. 81 ; Vanderpoel of origin to a foreign land, had lost the 
 
 V. O'Hanlon, 53 Iowa, 246 ; Mclntyre domicil of origin. He could not so dis- 
 
 V. Ghappel, 4 Tex. 187. Dicey says place the effect which law gives to the 
 
 (Dom. p. 84): "It was at one time domicil of origin, and which continues to 
 
 thought that a new domicil could be ac- attach until a new domicil is acquired 
 
 qnired. in itinere. . . . But this notion animo et' facto. He cannot have ac- 
 
 has now been rejected by the highest quired a domicil in a new country 
 
 authorities, and the principle is com- which he has never reached." And see 
 
 pletely established that a domicil of remarks of Sir .John Dodson in Laneu- 
 
 choice is established by nothing short ville v. Anderson, 2 Spinks, 41. 
 
 196 
 
§ 132, J CHANGE OP NATIONAL DOMICIL. [CHAP. VII. 
 
 acquired, and that a new domicil is not acquired until there 
 is not only a fixed intention of establishing a permanent resi- 
 dence in some other country, hut until also this intention has 
 been carried out by actual residence there." This language, 
 although general, was, it is true, used in a case in which it 
 was sought to set up a domicil of choice in derogation of the 
 domicil of origin ; but there is every reason to believe that 
 American courts would apply it as well when the question 
 was between two domicils of choice. The British courts, 
 however, might, in view of the adventitious character ascribed 
 to acquired domicil in Udny v. Udny, in a case in which it 
 became necessary to determine the domicil of a person during 
 the transitus from an acquired domicil to an intended domicil, 
 now decide that his domicil of origin had reverted. 
 
 § 132. Id. A fortiori, no Change takes Place when the Terri- 
 torial Limits of the Old Domicil have not been passed. — In the 
 cases which have been so far referred to, the factum, although 
 not complete, had progressed to the extent of removal of 
 bodily presence from the seat of the former domicil. It fol- 
 lows, a fortiori, that no change can take place where a person 
 has not yet passed the limits of the State or country of the 
 domicil which he seeks to abandon, even though he has al- 
 ready commenced his journey, or is prevented from makiug 
 it by circumstances beyond his control. This is true both as 
 applied to questions of reverter and of the acquisition of 
 domicil of choice. Thus in an early Pennsylvania case,^ F. 
 left his former abode in Pennsylvania with the intention of 
 settling in the then Spanish province of Louisiana, and while 
 he was at Lancaster in that State, in itinere, a foreign attach- 
 ment was issued against him, which the court promptly 
 quashed. In an English case ^ a widow whose domicil of 
 
 1 Lyle V. Foreman, 1 Dall. 480. Ala. 199. TheeaseoftheSnelleZeylder, 
 
 " Shippen, President, observed that referred to by Sir William Scott in his 
 
 while a man remained in the State, judgment in The Indian Chief, 3 C. Rob. 
 
 thongh avowing an intention to with- 12, appears to be somewhat in conflict 
 
 draw from it, he must be considered an with this decision, and so The Ocean, 
 
 inhabitant, and therefore not an object 5 id. 90. And see the opinion of Mar- 
 
 of the foreign attachment." shall, C. J., in The Venus, 8 Cranch, 
 
 ^ Goods of Eaffenel, 3 Swab. & Tr. 253. But these were cases of national 
 
 49 ; see also Talmadge v. Talmadge, 66 character in time of war. 
 
 19T 
 
§ 133.] THE LAW OP DOMICIL. [CHAP. VII. 
 
 origin was English, having acquired by marriage a French 
 domicil, after the death of her husband embarked at Calais 
 upon a steamer bound for England, with the intention of going 
 to that country to reside permanently there, but before the 
 vessel left, becoming ill, she was obliged to reland and soon 
 afterwards died in Prance. Upon these facts Sir C. Cress- 
 well held that her acquired domicil remained, there being no 
 sufficient abandonment so long as she remained within the 
 territory of France. 
 
 § 133. Id. Residence in a Definite Locality not necessary. — 
 It is probably not necessary that, in order to work a change of 
 domicil from one State or country to another, the person 
 whose domicil is in question should reach the particular spot 
 within the territorial limits of the latter at which he intends 
 fixing his permanent abode ; and indeed it may perhaps be 
 said that it is not absolutely necessary for such purpose that 
 the person should ever have, either in fact or in contempla- 
 tion, a permanent home within any particular municipal di- 
 vision of such State or country. Such cases must necessarily 
 be rare, but it is possible to conceive of a Frenchman, for exam- 
 ple, coming to England with the intention of permanently re- 
 maining there, but without ever fixing a permanent abode in 
 any particular part of that country. In such case, while it 
 would doubtless be much more difficult to prove the requisite 
 intention than if he had, for example, purchased a dwelling- 
 house and fixed himself in it in an apparently permanent man- 
 ner, yet, assuming the requisite intention to be made out by 
 other proofs, there is little doubt that his domicil would be held 
 to be changed. Lord Jeffrey, in Arnott v. Groom,^ thus re- 
 marks upon this subject : " I cannot admit, what Lord Fuller- 
 ton assumes to be the rule, that in order to make a domicil 
 it is necessary to have some particular spot within the terri- 
 tory of a law, — that it is not enough that the party shall have 
 an apparently continual residence there, but shall actually 
 have a particular spot or remain fixed in some permanent 
 establishment. In considering the indidce of domicil these 
 things are important ; ^ but they are not necessary, as matters 
 
 1 9 D. (Sc. Sess. Cas. 2d ser. 1846) 2 See Lockhart's Trusts, 11 Ir. Jur. 
 142, 150. (n. s.) 245. 
 
 198 
 
§134.] 
 
 CHANGE OP NATIONAL DOMICIL. [CHAP. VII. 
 
 of general law, to constitute domicil. Many old bachelors 
 never have a house they can call their own. They go from 
 hotel to hotel, and from watering-place to watering-place, 
 careless of the comfort of more permanent residence, and 
 unwilling to submit to the gine attendant on it. There was 
 the case of a nobleman who always lived at inns, and would 
 have no servants but waiters ; but he did not lose his domicil 
 on that account. If the purpose of remaining in the territory 
 be clearly proved aliter, a particular home is not necessary." 
 Dicey * also maintains the same view. 
 
 § 134. Id. No Length of Residence necessary to constitute 
 Domicil. — When the transfer of bodily presence has been ac- 
 complished, the factum is complete ; and generally speaking, 
 no further act is necessary, but domicil vests immediately,^ 
 
 ' Dom. p. 56 et seq. The contrary 
 view appears to have been taken in Cole 
 V. Lucas, 2 La. An. 946. Said Shaw, 
 C. J., in Otis V. Boston, 12 Cush. 44, 48 : 
 " We think the law assumes that if a per- 
 son is an inhabitant of the State, he must 
 be an inhabitant of some one town." 
 And doubtless this is true as an almost 
 universal rule ; but stUl it is possible to 
 conceive cases in which it would be ex- 
 tremely difficult, if not impossible, to 
 locate the municipal domicil of the per- 
 son. And there is little doubt also that 
 in cases such as Briggs a. Eochester, 
 16 Gray, 337 (see supra, §§ 86, 87), 
 there may be at least a brief space of 
 time during which a person, in the pro- 
 cess of changing his national or quasi- 
 national domicil, may be without a 
 municipal domicil. In cases, however, 
 like those mentioned above in the text, 
 the courts will lay hold of slighter cir- 
 cumstances to fix municipal domicil 
 than in cases where the question is one 
 of a change from one municipal division 
 in which a domicil has admittedly been 
 established to another municipal divis- 
 ion within the same State. See Wil- 
 liams V. Roxbury, 12 Gray, 21 ; see also 
 Carnoe v. Freetown, 9 Gray, 3S7. 
 
 1 Bell V. Kennedy, m,pra ; Craigie v, 
 Lewin, 3 Gurteis, 435 ; The Venus, 8 
 Cranch, 253; The Ann Green, 1 Gall. 
 
 274; Bumham v. Eangeley, 1 "Woodb. 
 & M. 7; Cooper v. Galbraith, 3 Wash. 
 C. Ct. 546 ; White v. Brown, 1 Wall. Jr. 
 C. Ct. 217; Johnson v. Twenty-one 
 Bales, 2 Paine, 601 ; s. c. Van Ness, 5; 
 United States ■». The Penelope, 2 Pet. 
 Ad. 438 ; Kemna v. Brockhaus, 10 Biss. 
 128 ; Doyle v. Clark, 1 Flipp. 536 ; 
 Wilton V. Falmouth, 15 Me. 479 ; Par- 
 sons V. Bangor, 61 id. 457; Stockton 
 V. Staples, 66 id. 197 ; Hulett v. Hu- 
 lett, 37 Vt. 581 ; Vischer v. Vischer, 12 
 Barb. 640 ; Cadwallader w. Howell & 
 Moore, 3 Harr. (N. J.) 138 ; Guier v. 
 O'Daniel, 1 Binn. 349 ; Carey's Appeal, 
 75 Pa. St. 201 ; Plummer v. Brandon, 
 5 Ired. 190 ; Home v. Home, 9 id. 99 ; 
 Kellar v. Baird, 5 Heisk. 39 ; Hairston 
 V. Hairston, 27 Miss. 704 ; Gravillon 
 V. Richards Ex'r, 13 La. Rep. 293 ; 
 Ven-et v. Bonvillain, 33 La. An. 1304 ; 
 Johnson v. Turner, 29 Ark. 280 ; Hart 
 V. Horn, 4 Kans. 232 ; Swaney v. Hutch- 
 ins, 13 Neb. 266 ; Republic v. Young, 
 Dallajn, 464 ; Russell v. Randolph, 11 
 T.ex. 460 ; Pothier, Intr. aux Cout. 
 d'OrUans, No. 15 ; Story, Confl. of L. 
 § 46 ; Wharton, Confl. of L. § 58 ; 
 Dicey, Dom. pp. 45, 76, 123 ; Demo- 
 lombe, Cours de Code NapoUon, t. 1, 
 no. 353 ; Sirey et Gilbert, Code Civil 
 Annote, art. 103, notes 1 and 2 and 
 authorities there cited. Story says 
 
 199 
 
§ 135.] 
 
 THE LAW OP DOMICIL. 
 
 [chap. VII. 
 
 provided the requisite animus be present. " Uoo solo die 
 constituitur domicilium si de voluntate appareat," says 
 D'Argentrd ; and Grotius puts it still more strongly : " uno 
 momento domicilium constitutum intelligitur." ^ Formerly in 
 Germany domicil could be acquired only by residence for a 
 year,^ and this was so, too, according to the custom of Paris ; * 
 but Denizart lays it down that " un seul jour de demeure 
 dans un lieu, avec intention d'y fixer un domicile, suffit pour 
 r^tablir. " ^ It was sought to incorporate in the French code 
 a provision requiring residence for a certain length of time 
 to establish domicil, but this was deemed unwise and the 
 proposition was rejected.® 
 
 § 135. Intention necessary. Length of Residence not sufS- 
 cient in the Absence of Intention. — But if the proper /acitwrn 
 is absolutely essential to the constitution of a domicil of choice, 
 certainly the proper animus is not less so.^ H ence mere 
 
 (suxrra) : "If he removes to another 
 place with an intention to make it his 
 permanent residence (animo manendi), 
 it hecomes instantaneously his place of 
 domicil ; " and this is substantially the 
 language used in most of the cases 
 cited above. In Louisiana it was at one 
 time held that residence for one year in 
 the State was necessary for the acquisi- 
 tion of domicil by persons coming from 
 other States. State ex rel. Tilghman v. 
 Judge of Probates, 2 Rob. (La.) 449; 
 Boone v. Savage, 14 La. R. 169 ; Lowry 
 V. Irwin, 6 Rob. (La.) 192. Bat this 
 doctrine, which had its origin in a con- 
 fusion of domicil with political rights, 
 was subsequently overruled. Amis v. 
 Bank, 9 Rob. (La. ) 348 ; Winter Iron 
 "Works V. Toy, 12 La. An. 200 ; Wesson 
 V. Marshall, 13 id. 436. 
 
 2 Opinion, from Hollandsche Consul- 
 tatien, given on Henry, For. Law, 198. 
 
 * Henry, For. Law, 194 and 199, and 
 Gail, Pract. Obs. 1. 2, obs. 35, no. 8. 
 
 * " A year and a day." Art. 173, 
 cited by Demolorabe, Cours de Code 
 NapoUon, t. 50, no. 353 ; Ancelle, These 
 pour le Doetorat, p. 94 ; Chavanes, 
 Thfese pour le Doetorat, p. 127. 
 
 5 Verb. Domicil, no. 19. 
 
 ' SiSance du 18 Vent&se, An 11 (Mou- 
 
 200 
 
 ricault) ; Locr^, Legislation CivUe, t. 3 
 (Code Civil) pp. 414-417 ; Ancelle, 
 These pour le Doetorat, p. 94 ; Philli- 
 more, Dom. no. 277 ; Id. Int. L. vol. 4, 
 no. 317. 
 
 1 Munro v. Munro, 7 01. & F. 842 ; 
 Moorhouse v. Lord, 10 H. L. Cas. 272 ; 
 Bell It. Kennedy, L. R. 1 Sch. App. 
 307 ; Hodgson v. De Beauchesne, 12 
 Moore P. C. C. 285 ; Craigie v. Lewin, 
 3 Curteis, 435 ; Jopp v. Wood, 3i Beav. 
 88 ; on app. 4 De G. J. & S. 616 ; Doug- 
 las V. Douglas, L. R. 12 Eq. Cas. 617 ; 
 Mitchell V. United States, 21 Wall. 350; 
 The Ann Green, 1 Gall. 274 ; Butler v. 
 Famsworth, 4 W. C. Ct. 101 ; Parsons 
 11. Bangor, 61 Me. 457 ; Eumney v. 
 Camptown, 10 N. H. 567 ; Barton v. 
 Irasburgh, S3 Vt. 159 ; Monson v. Pal- 
 mer, 8 Allen, 551 ; Dupuy v. Wurtz, 
 53 N. Y. 556 ; Dupuy v. Seymour, 64 
 Barb. 156 ; Hindman's Appeal, 85 Pa. 
 St. 466 ; Casey's Case, 1 Ashmead, 126 ; 
 Reading v. Taylor, 4 Brewst. 439 ; 
 State V. Frest, 4 Harr. (Del.) 558 ; 
 Ringgold V. Barley, 5 Md. 186 ; Ensor 
 V. Graff, 43 id. 391 ; Tyler v. Murray, 
 57 id. 418 ; Pilson v. Bushong, 29 
 Gratt. 229 ; Lindsay v. Murphy, 76 
 Va. 428 ; Colborn v. Holland, 14 Rich. 
 Eq. 176 ; Harkins v. Arnold, 46 Ga. 
 
§ 135.] 
 
 CHANGE OF NATIONAL DOMICIL. [CHAP. Til. 
 
 rhniigp nf rnflirlnnfif;,^ however long continued,' is not sufficient 
 unless the proper animus be present. This, too, is an almost 
 undisputed rule. Says Donellus : * " Habitatio non est satis, 
 animum consistendi accedere oportet. . . . Quisquis temporis 
 causa alicubi commoratur et consistit, ibi domicilium non 
 habet ; " and Zangerus : ^ " Ex sola autem domus inhabitatione, 
 vel aliarum rerum, immobilium scilicet, in aliena civitate aut 
 regione sen territorio comparatarum et acquisitarum posses- 
 sione domicilium non probatur, nee constituitur ; sed ex animo 
 et voluntate alicubi domicilium habendi. . . . Non enim ex eo, 
 quod quis focum et ignem teneat, arguitur domicilii consti- 
 tutio, utpote, quae ex solo animo perpetuo habitandi in loco 
 dependet." And Corvinus : ® " Nee etiam sola habitatio per 
 se, etiamsi sit longissimi temporis, domicilium constituit." 
 And Denizart : ^ " Pour se fixer un domicile, il faut qu'il y ait 
 un choix manifesto par une volont^ expresse . . . quelque 
 longue que soit I'habitation dans un lieu, elle ne constitue 
 pas de domicile, si on n'a pas en intention de I'y ^tablir." 
 
 656 ; Henrietta v. Oxford, 2 Ohio St. 
 32 ; Youkey v. State, 27 Ind. 236 ; 
 Wilkins V. Marshall, 80 111. 74 ; Hairs- 
 ton V. Hairston, 27 Miss. 704 ; Cole v. 
 Lucas, 2 La. An. 946 ; Adams v. Evans, 
 19 Kans. 174; Voet, Ad Pand. 1. 5, 
 t. 1, no. 98 ; Donellus, de Jure Civili, 
 1. 17, c. 12, p. 978, nos. 40-50 ; 
 Zangerus, De Except, pt. 2, c. 1, nos. 
 12-18 ; Corvinus, Jur. Eora. 1. 10, 
 t. 39, and opinion given in Henry, 
 For. Law, p. 193, from Hollandsche 
 Consultatieu ; Pothier, Intr. aux Gout. 
 d'Orleans, no. 181 and 182; Deni- 
 zart, verb. Domicil, nos. 18 and 20 ; 
 Story, Confl. of L. § 44 ; Wharton, 
 Confl. of L. § 56 ; Westlake, Priv. Int. 
 L. let ed. no. 38 ; Id. 2d ed. § 243 ; 
 Dicey, Dom. 77 et seq, and see authori- 
 ties cited, supra, § 125, note 1, and 
 infra, notes 2 and 3. 
 
 ^ De Bonneval v. De Bonneval, 1 
 Curteis, 856 ; Bremer v. Freeman, 1 
 Deane, 192 ; Brown v. Smith, 15 B. 
 444 ; The Venus, 8 Cranch, 116 ; Hyl- 
 ton V. Brown, 1 "W. C. Ct. 314 ; Pren- 
 tiss V. Barton, 1 Brock. 389 ; Wayne 
 V. Green, 21 Me. 357 ; Eumney o. 
 
 Camptown, 10 N. H. 567 ; Boardman 
 V. House, 18 Wend. 612'; Chaine v. 
 Wilson, 1 Bosw. (N. Y.) 673; Einggold 
 V. Barley, 5 Md. 186 ; Smith v. Groom, 
 7 Fla. 81 ; Smith v. Dalton, 1 Cin. S. 
 C. Eep. 150 ; Veile v. Koch, 27 111. 
 129 ; Gravillonu. Richards Ex'r, 13 La. 
 Kep. 293 ; McKowen v. McGuire, 15 
 La, An. 637 ; Kussell v. Randolph, 11 
 Tex. 460 ; People v. Peralta, 4 Gal. 
 175, and see notes 1, supra, and 3, 
 infra. 
 
 ' Moorhouse v. Lord, supra; Hodg- 
 son V. De Beauchesne, supra; Jopp v. 
 Wood, supra ; Bremer v. Freeman, 
 supra ; Goods of West, 6 Jur. (n. s. ) 
 831 ; In re Capdevielle, 2 Hurl. & Colt. 
 985 ; Collier v. Eivaz, 2 Curteis, 855 ; 
 The Venus, supra; White v. Brown, 
 supra ; Dupuy v. Wurtz, supra ; and 
 see the discussion of the effect of length 
 of residence on domicil, infra, § 382 et 
 seq, and authorities there cited. 
 
 * De Jure Civili, 1. 7, c. 12, p. -978. 
 
 6 De Except, pt. 2, c. 1, nos. 12 
 and 18. 
 
 « Jur. Rom. 1. 10, t. 39. 
 
 ' Verb. Dom. nos. 18 and 20. 
 
 201 • 
 
§ 136.] THE LAW OP DOMICIL. [CHAP. VIT. 
 
 " Nulla tempora constituunt domicilium aliud cogitanti," says 
 D'Argentr^ ; ^ and Mascardus ^ tells us, on the authority of 
 Bartolus, Baldus, Salicetus and others, that a thousand years 
 would not suffice ; and his statement is repeated with appro- 
 bation by Corvinus.^" John Yoet, in his commentaries on the 
 Pandects, says : ^^ " lUud certum est, neque solo animo atque 
 destinatione patrisfamilias, aut contestatione solS,, sine re et 
 facto, domicilium constitui ; neque sola domus comparatione 
 in aliqu§. regione ; neque solS, habitatione, sine proposito illic 
 perpetuo morandi; cum Ulpianus a domicilio habitationem 
 distinguat dum asserit, legem Corneliam injuriarum de domo 
 vi introitS., ad omnem habitationem in quS paterfamilias 
 habitat, licet ibi domicilium non habeat, pertinere." This dis- 
 tinction between hahitatio and domicilium is the familiar one 
 between residence and domicil, the latter being residence 
 coupled with the intention to settle permanently. 
 
 § 136. Id. — In the American case of White v. Brown the 
 jury found that absence for forty-eight years did not destroy 
 domicil, and the court affirmed their finding. In England it 
 was held, in CapdevieUe's case, that residence for twenty-nine 
 years worked no change ; so in Jopp v. "Wood twenty-five 
 years', and in Hodgson v. De Beauchesne twenty-three years', 
 residence was considered insufficient. In Bremer v. Freeman 
 Sir John Dodson said that " a person may live fifty years in 
 a place and not acquire a domicil, for he may have had all 
 ' the time an intention to return to his own country." Resi- 
 dence of itself, although decisive of i\iQ factum^ necessary for 
 j a change of domicil, is decisive of nothing further, and even 
 when long continued, although per se evidence of intention,^ 
 will not supply its place. Residence is of little value if not 
 united to intention, and is nothing if contradicted by it.^ In- 
 tention must concur with fact, and must clearly appear.* On 
 
 8 Coram, ad leg. Briton, art. 449. ^ See infra, ch. 20. 
 
 9 De Probat. ooncl. 535, no. 13. ' Dupuy v. Wiutz, supra. 
 
 1° See opinion from Hollandsehe Con- * Dupuy v. Wurtz, mpra ; Douglas 
 
 sultation, given in Henry, For. Law, v. Douglas, L. R. 12 Eq. Cas. 617 ; 
 
 P- 193. Reed v. Ketch, 1 Phila. 105 ; see infra, 
 
 " L. 5, c. 1, no. 9S. § 151, note 3. 
 1 Jopp V. Wood, 4 De G. J. & S. 
 616, per Turner, L. J. 
 
 202 
 
§ 138.] CHANGE OF NATIONAL DOMICIL. [CHAP. VII. 
 
 the one hand the shortest residence is sufficient if the requi- 
 site animus be present, and on the other the longest will not 
 suffice if it be absent. 
 
 § 137. Character of the Animus or Intention. Capacity to 
 choose. — But intention implies three things : (1) capacity to 
 choose, (2) freedom of choice, and (3) actual choice. In 
 order to set up a domicil of choice there must be, — 
 
 First, capacity to choose. Therefore it is that one who 
 is not sui juris is deemed in law incapable of acquiring a 
 domicil for himself. Thus, at birth an infant, if legitimate, 
 takes as his domicil of origin the domicil of his father at the 
 time of his birth,^ and acquires no other during infancy ex- 
 cept through the act of his father ; ^ or if he be dead, through 
 the act of his mother, so long, at least, as she remains 
 a widow.^ In like manner an illegitimate or posthumous 
 child takes as his domicil of origin the domicil of his mother,* 
 and acquires no other during infancy except through the act 
 of his mother, so long, at least, as she remains single.^ So, 
 too, a married woman upon marriage takes as her domicil the 
 domicil of her husband, and, speaking generally, is incapaci- 
 tated during coverture from acquiring any other by her own 
 act.® Idiots and lunatics '' furnish further illustration of the 
 principle. All of these persons are conclusively presumed in 
 law to be wanting in capacity to form the intention requisite 
 for a change of domicil, and therefore depend for such 
 change upon others who are in law capable of forming such 
 intention. 
 
 § 138. Id. Freedom of Choice. Compulsory Change of 
 Bodily Presence. — Second. There must be freedom of choice. 
 A compulsory change of bodily presence is not a change of 
 domicil. Thus a soldier, according to the English and 
 American cases, does not necessarily become domiciled at 
 the place where he is stationed,^ although, by a confusion of 
 the ideas of allegiance and domicil, he is in most cases con- 
 clusively presumed to be domiciled within the country in 
 
 1 Supra, § 105. ' Infra, § 245 a. 
 
 2 Infra, § 229 el seq. « Infra, § 209 et seq. 
 ' Infra, § 238 et seq. ~ Infra, § 264 et seq. 
 * Supra, § 105. l Infra, ch. 15. 
 
 203 
 
§ 139.] THE LAW OP DOMICIL. [CHAP. VII. 
 
 whose service he is employed.^ This, however, does not con- 
 flict with the principle above stated, as, generally speaking, a 
 man enters the service of a foreign country only through 
 choice ; nor does it conflict with the right of the soldier to 
 change his ^wasi-national ^ domicil. A prisoner does not neces- 
 sarily become domiciled at the place where he is imprisoned,* 
 nor a pauper where he is kept at an almshouse.^ 
 
 The exile escaping from political persecution,^ the fugitive 
 from justice,^ and (according to the opinion of a great Eng- 
 lish judge) the one who, harassed by debts, flees to avoid his 
 creditors,^ — all fall within the same category. Their absence 
 from the old place of abode, at least, if not their presence in 
 the new, is a matter of necessity and not of choice, of com- 
 pulsion and not of intention, and therefore no change of 
 domicil ensues. 
 
 § 139. Id. id. Inability to return. — Moreover, it is imma- 
 terial whether a person has been driven from his former place 
 of domicil and prevented from returning by causes existing 
 there, or whether he has voluntarily left it intending to return, 
 and is prevented from carrying out his intention by irresisti- 
 ble causes existing elsewhere. In neither case is his domicil 
 changed, because in both his continued absence is involuntary. 
 Thus in an Alabama case,^ in which the facts were that a 
 minor left his parents in Germany, and, coming to that State, 
 always declared his intention of returning home upon the 
 attainment of his majority, but was prevented from so doing 
 by the outbreak of the Rebellion and the blockade, — it was 
 held that he had acquired no domicil and was not subject to 
 military service in the Confederate Army. So, too, in an 
 Iowa case,^ in which the facts were that a person domiciled 
 in that State went in 1860 to Texas on a visit to her daughter, 
 and to collect a debt from the estate of a deceased relative, 
 but the Rebellion breaking out she was detained there, and 
 during her absence suits were brought against her in Iowa, 
 
 ^ Infra, oh. 15. 8 Snch at least was the opinion of 
 
 8 I'fifra, id. Lord Westbury in Udny v. Udny, L. R. 
 
 * Infra, ch. 13. 1 Soh. App. 441, but see infra, ch. 13. 
 6 Infra, ch. 12. i Ee Fight, 39 Ala. 452. 
 
 " Infra, ch. 13. 2 Love w. Cheriy, 24 Iowa, 204- 
 
 ' Infra, id. » 
 
 204 
 
§ 140.J CHANGE OF NATIONAL DOMICIL. [CHAP. Til. 
 
 and process was served by leaving copies at her former usual 
 dwelling-place, — it was held that the service was good, and 
 the subsequent proceedings and sale of real estate based 
 thereon were valid, the defendant never having relinquished 
 her animus revertendi. Sir William Scott went even a step 
 further in the case of The Ocean,^ and held that a British- 
 born subject who had settled as a partner in a house of trade 
 in Holland, but upon the breaking out of war had made every 
 arrangement for a dissolution of the partnership and a return 
 to England, and was only prevented from removing by the 
 forcible detention of all British subjects, had regained his 
 British national character. This, however, was a prize case, 
 and would probably not be followed as a precedent in any 
 case not involving the question of national character in time 
 of war. Indeed, the opposite view was held by Sir Oresswell 
 Oresswell in Goods of Raffenel. 
 
 § 140. Id. id. Compulsion and Motive. — A distinction 
 must be noted between compulsion and a mere motive induc- 
 ing one to change his place of residence. Thus the fact that 
 residence is in deference to the wishes of another does not 
 prevent domicil from attaching. This was early laid down 
 by Lord Alvanley in Somerville v. Somerville : ^ "It is said 
 his father's dying injunctions were that he should not dis- 
 solve his connection with Scotland. In the subsequent part 
 of his life he most religiously adhered to those injunctions. 
 But it is said that in conversation he manifested his prefer- 
 ence of England ; that if it had not been for those injunctions 
 of his father, he would have quitted Scotland. Admit it. 
 That in my opinion is the strongest argument in favor of 
 Scotland ; for whether willingly or reluctantly, whether from 
 piety or from choice, it is enough to say he determined to 
 keep up his connection with that country, and the motive 
 makes not the least difference." So in Aitchison v. Dixon ^ 
 
 ' 5 C. Rob. 90. But compare this France to be near a French lady of about 
 
 with Goods of Raffenel, 3 Swab. & his own age, who in his youth had saved 
 
 Tr. 49. his life, and to whom he was greatly 
 
 1 5 Ves. Jr. 750, 787. attached; and although he had frequent- 
 
 2 L. R. 10 £q. Cas. 589. In Ander- ly declared his intention of returning 
 son o. Laneuville, 9 Moore P. C. C. to England, — where he had acquired 
 325 ; 2 Spinks, 41, the testator lived in a domicil, his domicil of origin having 
 
 205 
 
§ 141.J THE LAW OF DOMICIL. [CHAP. TIL 
 
 it was held by James, V. C, that the fact that the residence 
 of a Scotchman in England was out of deference to the 
 wishes of his wife, who was an Englishwoman of wealth, and 
 who provided a home for her husband and exercised great 
 influence over him, rather strengthened than otherwise the 
 inference of domicil there. On the other hand, in Hodgson 
 V. De Beauchesne,^ the Judicial Committee of the Privy 
 Council, speaking through Dr. Lushington, held that the 
 residence of General Hodgson in Paris for a long period 
 (twenty-three years) was rendered less important, as evi- 
 dence of his intention, by the fact that his residence there 
 was in deference to the wishes of his wife, who was a French- 
 woman. These cases, however, are easily reconcilable upon 
 their circumstances, and merely go to establish that residence, 
 as evidence of intention, may, according to circumstances, be 
 either weakened or strengthened by the fact that it is in 
 deference to the wishes of another. 
 
 Except as an evidence of intention, motive is immaterial 
 so long as the individual remains free to choose ; but when- 
 ever the controlling influence becomes a vis major which 
 shuts out the operation of choice, speaking generally at 
 least, a change of domicil becomes impossible. 
 
 § 141. Id. id. id. — The distinction between compulsion 
 and motive has been further illustrated by the case of an 
 invalid. The domicil of one who flies from the rapid ap- 
 proach of death to a more congenial climate, or of one who 
 being abroad on account of ill health finally surrenders all 
 hope of return, undergoes no change thereby; but where a 
 preference for a particular climate operates merely as a 
 motive inducing one to change his place of abode, a change 
 of domicil is no more prevented thereby than by a preference 
 for a place on account of the manners and customs of the 
 inhabitants, or the superior business facilities which it 
 affords.^ 
 
 It must be conceded, however, that the distinction between 
 
 teen Irish, — in event of her death, he dane v. Eckford, L. R. 8 Eq. Cas. 
 
 was held to be domiciled in France. 631. 
 
 See also Attorney-General v. De Wahl- '12 Moore P. C. C. 285. 
 statt, 3 Hurl. & Colt. 374 ; and Hal- l See cases referred to, infra, ch. 14. 
 206 
 
§ 142.] CHANGE OF NATIONAL DOMICIL. [CHAP. VII. 
 
 motive and compulsion may become very shadowy, and in 
 some cases hard to apply. It may become impossible to 
 determine just ■where motive ends and compulsion begins, 
 inasmuch as motive may, and frequently does, rise to the 
 degree of strong moral compulsion, which shuts out practi- 
 cally, though not absolutely, the operation of choice. A 
 sharp dividing line certainly cannot be drawn ; but as we ap- 
 proach the middle ground each case must be determined upon 
 its own peculiar circumstances. 
 
 § 142. Id. Motive immaterial if the proper Intention ex- 
 ist. — And here another view of motive must be noticed. It 
 is admirably stated by Morton, C. J., in a late Massachusetts 
 case,^ as follows : " A man has the right to change his domi- 
 cil for any reason satisfactory to himself. In determining 
 whether there has been such a change from one place to 
 another, the test is to inquire whether he has in fact removed 
 his home to the latter place with the intention of making it 
 his residence [with the proper animus manendi^. If he has, 
 he loses his old domicil and acquires a new one with all its 
 rights and incidents ; and the law does not inquire into the 
 purposes or motives which induced him to make such change. 
 It may be because he prefers the laws of the new place of 
 domicil, or because he can diminish his taxes and other bur- 
 deifs,^ or because he desires to bring a suit in a court which 
 would not otherwise have jurisdiction.^ His status as an in- 
 habitant depends upon the fact that he has made a change of 
 his home, and not upon the motives or reasons which influ- 
 enced him to do so. In the case at bar, therefore, it being 
 found as a fact that the respondent, Kelley, had become a 
 resident of this State, he had the right to apply for the benefit 
 of the insolvent laws, although his sole purpose in making the 
 change was to enable himself to do so." 
 
 In Briggs v. French,* Story, J., says : " It is every day's 
 
 1 McConnell v. Kelley, 138 Mass. a person wishing to commence suits in 
 372. the courts of the United States, instead 
 
 2 Draper v. Hatfield, 124 Mass. 53 ; of the State courts, chooses to remove 
 Thayer v. Boston, id. 132. into another State, and executes such in- 
 
 * See next note. tention honafida, he may thereby change 
 
 * 2 Sumn. 251, 255. In Case v. his citizenship. But his removal must 
 Clark, 5 Mason, 70, Storv, J., says ; " If be a real one animo manendi, and not 
 
 207 
 
§ 144.J THE LAW OF DOMICIL. [CHAP. VII. 
 
 practice for a citizen of one State to remove to another State 
 to become a citizen of the latter in order to enable him to 
 prosecute suits in the courts of the United States. And pro- 
 vided the removal be real and not merely nominal, and he 
 has truly become a citizen of another State, I have never 
 understood that his motive would defeat his right to sue. It 
 might be a circumstance to call in question the bona fides and 
 reality of the removal or change of domicil. But if the new 
 citizenship is really and truly acquired, his right to sue is a 
 legitimate, constitutional, and legal consequence, not to be 
 impeached by the motive of his removal." 
 
 § 143. Id. Actual Choice. — Third. There must be actual 
 choice. In order to effect a change of domicil a person must 
 not only be capable of forming the proper intention and free 
 to do so, but he must actually form such intention. This 
 point has already been treated of.^ Absence from a place of 
 domicil and presence in another place if long continued is 
 often strong evidence of a change, but it does not of itself 
 constitute a change if the requisite animus be not present.^ 
 Some cases upon this point have been alluded to. The sub- 
 ject may be further illustrated by the case of an ambassador, 
 consul, or other person abroad in the civil service.^ There is 
 nothing in the official character of such person which pre- 
 vents him from acquiring domicil where he resides, but ^ven 
 when the residence is long continued the presumption of law 
 founded upon the usual course of affairs, and therefore subject 
 to rebuttal, is that he is abroad for a temporary purpose, 
 subject momentarily to recall, and hence has not chosen his 
 present abiding-place as a place of permanent abode. 
 
 § 144. Id. Requisite Animus not Intention to change Political 
 Nationality. — "What then is the requisite animus ? 
 
 First. It is not, in cases of national domicil, intention to 
 change nationality. Allegiance and domicil are entirely dis- 
 
 merely an ostensible one." To the Ohle, 117 U. S. 123. See also Butler d. 
 
 same eifect are Pond v. Vermont Valley Farnsworth, 4 Wash. C. Ct. 101. 
 R. R. Co. 12 Blatch. 280, and Kemna i Supra, §§ 125, 126, 135, 136. Seo 
 
 V. Brockhaus, 10 Biss. 128. The Su- authorities there cited, 
 preme Court of the United States ap- 2 Supra, §§ 125, 135 ; and infra, 
 
 pears to have taken the same view in ch. 20. 
 Chicago & Northwestern Ry. Co. ti. s infra, chs. 16 and 17. 
 
 208 
 
§ 144.J 
 
 CHANGE OP NATIONAL DOMICIL. [CHAP. VII. 
 
 tinct things. They may exist apart ; they may exist to- 
 gether; but the one does not necessarily involve the other. 
 Thus a man may be at the same time a British subject and a 
 domiciled American. Lord Westbury, in Udny v. Udny,^ thus 
 states the distinction : " The law of England and of alniost 
 all civilized countries ascribes to each individual at his birth 
 two distinct legal states or conditions : one by virtue of which 
 he becomes the subject of some particular country, binding 
 him by the tie of natural allegiance, and which may be called 
 his political status ; another by virtue of which he has as- 
 cribed to him the character of a citizen of some particular 
 country, and as such is possessed of certain municipal rights 
 and subject to certain obligations, which latter character is 
 the civil status, or condition of the individual, and may be 
 quite different from his political status. The political status 
 may depend upon different laws in different countries ; where- 
 as the civil status is governed universally by one single 
 
 I L. E. 1 Sch. & Div. App. 441. 
 And see, besides the cases cited in the 
 succeeding notes, Haldane v. Eckford, 
 8 Eq. Cas. 631 ; White v. Brown, 1 
 WaU. Jr. C. Ct. 217 ; Von Glahn a. 
 Varenne, 1 Dill. 516 ; Brown v. United 
 States, 5 Ct. CI. 571 ; Maltass v. Mal- 
 tass, 1 Kob. Eccl. 67 ; Parke, B., arg. 
 Attorney-General v. Dunn, 6 Mees. & 
 W. 521 ; and Dicey, Dom. p. 81 et seq. 
 Fcelix, in his work on Private Interna- 
 tional Law, throughout confuses domi- 
 eil and nationality, and says expressly 
 (tome 1, titre 1, sec. 1, no. 28), that 
 '• the expressions ' lieu du domicile de 
 I'individu ' and ' territoire de sa nation ou 
 patrie ' may be employed indifferently." 
 The learned and judicious editor of the 
 later editions of that treatise (Deman- 
 geat), while criticising the author's lan- 
 guage, and declaring the idea that "a 
 man can have his domicil only in the 
 territory of the nation of which he is a 
 member " " completely inadmissible " 
 (3d ed. tome 1, p. 67, note ; see also 
 Fiore, Priv. Int. Law, Pradier-Fod^r^'s 
 trans, no. 14 and note), adds (loc. cit.) : 
 "It is necessary to remember that al- 
 most always the language of M. Foelix 
 
 will be found exact in fact ; that is to 
 say, that in the great majority of cases 
 the law of the domicil will be at the 
 same time the law of the people of 
 which the individual is a member ; " in 
 other words, domicil and nationality 
 usually coincide. The language, how-, 
 ever, is none the less misleading. The 
 French Code plainly recognizes the dis- 
 tinction between nationality and na- 
 tional domicil (Art. 13, Code Civil ; 
 see infra, ch. 19). In Bate v. Incisa 
 (59 Miss. 513), the court draws a dis- 
 tinction between national domicil and 
 domicil for the purpose of succession, 
 evidently misapplying the former term 
 in the sense of nationality. It is there 
 said : " Although the husband was a sub- 
 ject of the kingdom of Italy, and that 
 was his national domicil, he and his 
 wife made their home in Mississippi, 
 which was their domicil for the pur- 
 pose of succession." By this certainly 
 is not meant that a person can have 
 national domicil, in the sense in which 
 that term is usually understood, in one 
 country and quasi-nsXioneX domicil in 
 another. 
 
 14 
 
 209 
 
§ 145.] THE LAW OF DOMICIL. [CHAP. VIL 
 
 principle, namely, that of domicil, which is the criterion es- 
 tablished by the law for the purpose of determining civil 
 status." 
 
 Formerly British statesmen and jurists clung with great 
 tenacity to the doctrine of the indelibility of natural allegiance, 
 applying sometimes with great rigor the maxim, " Nemo po- 
 test exuere patriam;" until in 1870 they yielded to more 
 enlightened and modern views of international relations, and 
 both by treaty with the United States and by statute totally 
 and finally surrendered the doctrine. But long before that 
 step was taken, changes of national domicil were held in Eng- 
 lish and Scotch cases. It was indeed doubted by Sir John 
 Nichol, in Curling v. Tliornton,^ whether a man could so far 
 exuere patriam as to accomplish a change of national domicil 
 for testamentary purposes ; but his Honor's doubts were ex- 
 pressly overruled by the High Court of Delegates in the sub- 
 sequent case of Stanley v. Bernes,^ and it was settled that 
 a person might accomplish such change at pleasure. In 
 America, too, it was formerly held that a person could not 
 entirely rid himself of his natural allegiance,* but it has never 
 been doubted that one might change his domicil at pleasure. 
 
 § 145. Id. id. Moorhouse v. Lord. — The distinction has 
 of late been brought into greater prominence by the criticisms 
 which have been passed upon certain unfortunate expressions 
 which fell from Lords Cranworth and Kingsdown in the case of 
 Moorhouse v. Lord.^ The language of the former was as fol- 
 lows : " In order to acquire a new domicil ... a man must in- 
 tend quatenus in illo exuere patriam. It is not enough that you 
 merely mean to take another house in some other place, and 
 that on account of your health, or for some other reason, you 
 think it tolerably certain that you had better remain there all 
 the days of your life. That does not signify : you do not lose 
 your domicil of origin or your resumed domicil merely be- 
 cause you go to some other place that suits your health 
 better, unless, indeed, you mean, either on account of your 
 
 ^ 2 Add. 6. * See 2 Kent's Comm. 43 et seq. 
 
 " 3 Hagg. Eccl. 373. See Marquis > 10 H. L. Cas. 272, 283, 292. 
 of Hertford v. Croker, 4 Moore P. C. C. 
 334. 
 
 210 
 
§ i45.J CHANGE OP NATIONAL DOMICIL. [CHAP. Til. 
 
 health or for some other motive, to cease to be a Scotchman 
 and become an Englishman or a Trenchman or a German. 
 In that case, if you give up everything you left behind you 
 and establish yourself elsewhere, you may change your domi- 
 cil." The expression used by Lord Kingsdown was to the 
 same effect. The language thus used was not necessary to a 
 decision of the case, but advantage was taken of the occasion 
 to enunciate what Lord Cranworth denominated some " mod- 
 ern improved views of domicil." 
 
 The expressions of their lordships have been much criti- 
 cised and perhaps to some extent misunderstood. Thus 
 Bramwell, B., in Be Capdevielle,^ says : " The expressions 
 used appear to me, with great deference, far too extensive. 
 To say that a man cannot abandon his domicil of origin with- 
 out doing all that in him lies to divest himself of his country, 
 is a proposition which, with great submission, I think cannot 
 be maintained. In the ordinary case of the Irish or English 
 laborer emigrating to the United States of America without any 
 hope or intention of ever returning, but not naturalizing him- 
 self for fear of being subject to conscription ; ready to claim 
 the protection of the British ambassador to prevent his being 
 made a conscript, but having no desire or Intention whatever 
 to remain a British subject, — I think that if he died in 
 America it could scarcely be argued that America was not 
 his place of domicil, although he had not done all that in him 
 lay to abandon his native country. Therefore, assuming those 
 noble and learned lords intended to overrule previous cases, 
 I have great difficulty in supposing that they intended every- 
 thing that would be comprehended within the very extensive 
 expressions they used." Referring to Lord Kingsdown's 
 expression (also used by Lord Cranworth) in Moorhouse v. 
 Lord, that " a man must intend to become a Frenchman 
 instead of an Englishman," Lord Westbury said, in Udny v. 
 Udny : ^ " These words are likely to mislead if they were in- 
 
 2 2 Hurl. & Colt. 985, 1015. See said: " I think some of the expressions 
 also remarks of Martin, B., and Pollock, used in former cases as to the intent 
 C. B., in the same case. 'exv^re pcUriam,' or to become 'a 
 
 8 L. K. 1 Sch. App. 441, 460. In Frenchman instead of an Englishman,' 
 the same case Lord Chancellor Hatherley go beyond the question of domicil. 
 
 211 
 
§ 147.] THE LAW OP DOMICIL. [CHAP. VII. 
 
 tended to signify that for a change of domicil there must be a 
 change of nationality, — that is, of natural allegiance. That 
 would be to confound the political and civil statue of an 
 individual, and to destroy the difference between patria and 
 domicilium." 
 
 § 146. Id. id. id. — But that Lords Cranworth and Kings- 
 down could not have meant that a change of national domicil 
 involved a change of nationality in the sense in which Lord 
 Westbury uses that term, is clear from the fact that the case 
 of Moorhouse v. Lord was decided in 1863, and the doctrine 
 of perpetual allegiance was not surrendered by Great Britain 
 until 1870. The context shows that the strong expressions 
 which they used were merely meant to convey the idea of a 
 person incorporating himself as a permanent settler in another 
 country, although Wickens, V. C, understood them to mean 
 that intention to change civil status was necessary. 
 
 § 147. Id. id. id. — In the late case of Brunei v. Brunei,^ 
 decided since the Naturalization Act, the exact question arose ; 
 and notwithstanding that the deceased had distinctly declared 
 that he would not give up his French citizenship, and had 
 declined to become a naturalized British subject, it was held 
 by Bacon, V. C, that he had become a domiciled Englishman. 
 The Vice-Chancellor in that case used this language : " To 
 effect a change of domicil it is not necessary to obtain letters 
 of naturalization. A permanent residence by a foreigner in 
 this country with no intention of ever returning to his native 
 country will be sufficient to create a domicil in this country. 
 Udny V. Udny cuts down, or rather explains, the expressions 
 in Moorhouse v. Lord, that for a change of national domicil 
 there must be a definite and effectual change of nationality, 
 that a man must intend exuere patriam, and I adopt what 
 was said by Lord Westbury." It must be said, however, that 
 
 The question of naturalization and of least, put ofiF and resume at will obliga- 
 
 allegiance is distinct from that of dom- tions of obedience to the government of 
 
 icil. A man may continue to be an the country of which at his birth he is a 
 
 Englishman, and yet his contracts and subject, but he may many times change 
 
 the succession to his estate may have to his domicil." 
 
 be determined by the law of the coun- l L. E. 12 Eq. Cas. 298. See also 
 
 try in which he has chosen to settle Doucet u. Geoghegan, L. E. 9 Ch. D. 
 
 himself. He cannot, at present at 441. 
 212 
 
§ 148.] 
 
 CHANGE OP NATIONAL DOMICIL. [CHAP. VII. 
 
 a change of allegiance accompanying or following a change of 
 residence would be very strong evidence of intention to change 
 domicil.^ 
 
 § 148. Id. or Civil Status. — Second. The requisite animus is 
 not intention to change civil status. A change of civil status 
 is, as has already been pointed out, one of the legal conse- 
 quences of a change of national or ^'wasi-national domicil, but 
 it is a consequence which rarely presents itself to the mind of 
 one contemplating a change of domicil. To hold, therefore, 
 that in order to accomplish a change of domicil a man must 
 have present in his mind, and must deliberately accept the 
 notion of a change of civil status, would be practically to de- 
 clare that a change of domicil rarely or never takes place, — 
 a convenient rule, perhaps, as Wickeus, V. C, points out, for 
 courts to work by, but one entirely at variance with general 
 principles, and, although supported by opinions of great weight, 
 with almost all of the decided cases. In Douglas v. Douglas,^ 
 
 2 See infra, § 432 et seq. 
 
 1 L. E. 12 Eq. Cas. 617. Besides 
 the authorities cited by Wickens, V. C, 
 in the above passage, the doctrine that 
 intention to change status is necessary 
 for a change of domicil is held by Fraser, 
 2 Husband and Wife, 2d ed. p. 1265. 
 Westlake (Priv. Int. L. 2d ed. §§ 230 
 and 229 a) appears to hold a somewhat 
 modified vievir, viz., that intention to 
 become identified with, and a member of, 
 a new civil society is necessary for the 
 constitution of a domicil of choice ; and 
 he argues at length in favor of this 
 view from various expressions which 
 have fallen from English judges. But 
 opposed to it are, as he admits, not only 
 the long general current of authority, 
 continental and British, but the clear 
 language of Lord Westbury in Udny 
 0. Udny, viz. : " Domicil of choice is 
 a conclusion or inference which the 
 law derives from the fact of a man fix- 
 ing voluntarily his sole or chief resi- 
 dence in a particular place, with an 
 Intention of continuing to reside there 
 for an unlimited time." The same 
 learned writer, however, says elsewhere 
 (L. Mag. & Eev. vol. oclii. p. 363, Au- 
 
 gust, 1884), in a review of Be Tootal's 
 Trusts (see infra, ch. 19) : " That domicil 
 of choice is merely permanent residence, 
 viewed with the necessary technical 
 precision, must be affirmed in Roman 
 and in continental law, and has been 
 the general doctrine of English law 
 also. It may be otherwise' expressed by 
 saying that any question about the ac- 
 quisition of a domicil of choice depends 
 only on the facts about the person's 
 residence, and about his intentions with 
 regard to the duration of that residence. 
 Those facts may be obscure, but all the 
 elements of a solution lie in them." 
 And after quoting the language of 
 Lord Westbury (supra), he adds : "If 
 we said, ' derives exclusively from the 
 fact, &c.' — which it is not quite cer- 
 tain was Lord Westbury's meaning, we 
 should have an excellent statement of 
 the doctrine now referred to." The 
 American courts and text-writers have 
 not gone into refinements of this sort, 
 but have contented themselves with de- 
 manding intention substantially such 
 as is described. Infra, § 170 et seq. 
 Whether or not a different kind of ani- 
 mus is required for the constitution by 
 
 213 
 
§ 148.] THE LAW OP DOMICIL. [CHAP. VII. 
 
 the learned judge named uses this language : " It is univer- 
 sally, or all but universally, true, that in order to prove that 
 the domicil of an adult of sound mind has been changed an 
 intention on his part must be shown. The question on which 
 opinions have differed is as to what he must be shown to have 
 intended. According to one view it is sufficient to show that 
 he intended to settle in a new country ; to establish his prin- 
 cipal or sole and permanent home there, though the legal 
 consequences of so doing on his civil status may never have 
 entered his mind. According to the other view it is neces- 
 sary to show that he intended to change his civil status, to 
 give up his position as, for purposes of civil status, a citizen 
 of one country, and to assume a position as, for the like pur- 
 poses, the citizen of another. This stricter view is supported 
 by opinions of great weight, among others by the Lord 
 President in Donaldson v. McClure ; ^ that of the Lord Chief 
 Baron Pollock, in Attorney-General v. Countess De Wahlstatt,^ 
 and by some expressions used by the late Lords Cranworth 
 and Kingsdown. And it would be an extremely convenient 
 one since, if, for the purpose of showing that a man had 
 changed his domicil, it were necessary to show that the notion 
 of a change of the civil status had occurred to his mind and 
 been accepted by his will, the attempt would in most cases 
 fail. Few men think of or wish for a change of civil domicil 
 as such, except perhaps in certain cases where a man desiring 
 to change his political domicil contemplates the change of civil 
 domicil as involved in it, and occasionally where the object 
 of the change is to escape into a freer condition of marriage 
 law. And cases like Haldane v. Bckford,* where the change 
 of civil status can be shown to have been recognized and ac- 
 cepted by a person who had no special reason to desire it, and 
 probably did not desire it, are very rare indeed. The stricter 
 rule would therefore, in the great majority of cases, leave 
 the domicil to be governed by origin, which it seems to me 
 would be in every respect a convenient view. In this case, if 
 
 a European or an American of a domicil ^ 20 D. (Sch. Sess. Cas. 2d ser. 1857) 
 
 of choice in a country where European 307. 
 civilization does not prevail, is not » 3 Hurl. & Colt. 374, 
 clear. See infra, ch. 19. ♦ L. R. 8 Eq. 631. 
 
 214 
 
§ 149.] CHANGE OP NATIONAL DOMICIL. [CHAP. VII. 
 
 I considered the stricter rule as law, I should have no diffi- 
 culty whatever in holding that the testator never changed his 
 domicil. I feel sure that the idea of changing his civil status 
 from that of a Scotchman, under the Scotch law, to that of an 
 Englishman, under the English law, never occurred to him, 
 and that if it had occurred to him he would have repudiated 
 it. Probably the question as to his eldest son's legitimacy 
 would of itself have been conclusive on this point. But I 
 cannot satisfy myself that the stricter rule, as I have called 
 it, can be considered as the law of England. It never was, I 
 believe, the law of any other country, except perhaps Scotland, 
 or recognized as law by any of the text-writers of European 
 authority who have dealt with questions of domicil ; and it is 
 difficult to believe that the law of England has drifted so far 
 from the general principles on which it professed to be founded 
 and which it always professed to follow. It seems to me, as 
 it did to Vice-Chancellor James, in Haldane v. Eckford, that 
 the intention required for a change of domicil, as distin- 
 guished from the act embodying it, is an intention to settle iu 
 a new country as a permanent home, and that if this inten- 
 tion exists and is sufficiently carried into effect certain legal 
 consequences follow from it, whether such consequences were 
 intended or not, and perhaps even though the person in ques- 
 tion may have intended the exact contrary. The case of a 
 person wishing to settle permanently in a country different 
 from that of his domicil, but to retain, as regards testamen- 
 tary and matrimonial matters, and as regards civil status 
 generally, the law of the country that he leaves, may have 
 rarely arisen, and is perhaps not likely to arise. When it 
 arises, if it ever should arise, the determination ought, I 
 think, to be that the intention was sufficient to warrant a 
 conclusion in favor of a change of domicil." 
 
 § 149. Id. id. — In Steer's case,i the testator, whose domi- 
 cil of origin was English, and who had resided upwards of 
 forty years at Hamburg under circumstances which plainly 
 showed his intention of permanent residence there, made a 
 will in England which contained the following declaration : 
 "Whereas, although I am now in England, my residence 
 
 1 3 Hurl. & Nor. 594. 
 
 215 
 
§ 151.] THE LAW OF DOMICIL, [CHAP. VII. 
 
 recently was in Hamburg, of which for the purpose of en- 
 abling me to trade I was constituted a burgher and my inten- 
 tion is to return there ; but I do not mean by such declaration 
 of intention to renounce my domicil of origin as an English- 
 man." But in spite of this the Court of Exchequer held that 
 he was domiciled in Hamburg and not in England. 
 
 We have already seen that a person may have in view, in 
 settling in a new territory, the subjection of himself to the 
 peculiar laws of that territory ,2 but it by no means follows 
 that he must have such purpose in view. Furthermore, while 
 the opinion of the person whose domicil is in question as to 
 whether a change has been effected or not, may be some evi- 
 dence of his intention,^ it is of little value if contradicted by 
 the facts and circumstances attending his residence.* 
 
 § 150. The Requisite Animus defined. — The intention 
 requisite for a change of domicil is (1) intention completely 
 to abandon the former place of abode as a place of abode, 
 and (2) to settle presently and permanently in another place. 
 The subject naturally divides itself into the animus non re- 
 vertendi and the animus manendi, which it is proposed to 
 consider separately. 
 
 § 151. (1) Animus non revertendi. — It results from the 
 maxim, " No person can have more th an one domicj l at the 
 same time," that before a new domicil can be established 
 the old one must be abandoned ; ^ and as the presumption of 
 law is always against a change of a domicil,^ abandonment 
 
 2 Supra, § 142. . 2 Aikman v. Aikman, 8 Macq. H. L. 
 
 ' Haldane v. Eckford, L. K. 8 Eq. Cas. 854, per Lord Wensleydale ; Max- 
 
 Cas. 631 ; Hamilton c. Dallas, L. B. well». McClure, 6 Jur. (N. s.) 407 ; and 
 
 1 Ch. D. 257. In Hodgson v. De see remarks of the Scotch judges in 
 
 Beauehesne the impression on the part same case, suh nom. Donaldson v. Mc- 
 
 of the daughter of General Hodgson Clure, 20 D. (So. Sess. Cas. 2d ser. 
 
 (whose domicil was in question) is men- 1857) 307; Moorhouse v. Lord, 10 H. L. 
 
 tioned as a fact in support of his Eng- Cas. 272, per Chelmsford ; Hodgson v. 
 
 lish domicil. De Beauehesne, 12 Moore P. C. C. 285 ; 
 
 * Ee Steer, 8 Hurl. & Nor. 594 ; De Bonneval v. De Bonneval, 1 Curteis, 
 
 Butler V. Hopper, 1 "Wash. C. Ct. 499 ; 856 ; Attorney-General v. Eowe, 1 Hurl. 
 
 Butler V. Farnsworth, 4 id. 101 ; Chaine & Colt. 81, per Pollock, C. B. ; Re Capde- 
 
 V. "Wilson, 1 Bosw. (N. Y.) 673; State vielle, 2 id. 985, per Martin & Channel, 
 
 V. Hallet, 8 Ala. 159 ; and see oases of BB. ; Attorney-General v. DeWahlstatt, 
 
 declaration in wills and other doou- 8 id. 274, per Pigott, B. ; Lord Advo- 
 
 ments, infra, § 461 el seg. cate v. Lamont, 19 D. (So. Sess. Cas. 
 
 1 See cases cited in the succeeding 2d ser. 1857) 779 ; Mitchell v. United 
 
 notes, and infra, § 179. States, 21 Wall. 350; Desmare v. United 
 216 
 
§ 151.J 
 
 CHANGE OP NATIONAL DOMICIL. [CHAP. VII. 
 
 must clearly appear ,3 and the onus is upon him who asserts 
 it.* This burden is not discharged by merely showing ab- 
 sence, although for a long period. If the absence is such as 
 is not inconsistent with an intention to return, the former 
 domicil is retained,^ and a fortiori it is retained where animus 
 revertendi affirmatively appears. The fundamental idea of 
 domicil is home ; and as a man does not lose his home in fact 
 by mere absence, so he cannot lose his home in law from^ the' 
 same cause. Indeed nothing is better settled than that ab- 
 sence for a temporary purpose cum animo revertendi is not 
 sufficient to work a change of domicil.^ And it makes no 
 
 States, 93 U. S. 605 ; White v. Brown, 
 
 I Wall. Jr. C. Ct. 217 ; Burnham v. 
 Eangeley, 1 Wood. & M. 7 ; Brewer v. 
 Linnaeus, 36 Me. 428 ; Harvard College 
 V. Gore, 5 Pick. 370 ; Kilbum v. Ben- 
 nett, 3 Met. 199 ; Chieopee v. Whately, 
 
 6 Allen, 508 ; Mooar v. Harvey, 128 
 Mass. 219 ; Nixon v. Palmer, 10 Barb. 
 175 ; Pilson v. Bushong, 29 Gratt. 229 ; 
 Lindsay v. Murphy, 76 Va. 428 ; Bar- 
 rett V. Black, 25 Ga. 151 ; Glover v. 
 Glover, 18 Ala. 367 ; Kelley's Ex'r v. 
 Garrett's Exr's, 67 6a. 304; Plum- 
 mer v. Brandon, 5 Ired. Eq. 190 ; Nu- 
 gent V. Bates, 51 Iowa, 77 ; Keith v. 
 Stetter, 25 Kans. 100 ; Williams v. 
 Saunders, 5 Cold. 60 ; Tanner v. King, 
 
 II La. Eep. 175 ; Voet, Ad Pand. 1. 5, 
 t. 1, nos. 92, 97, and 98 ; Zangerus, 
 De Except, pt. 2, o. 1, no. 10 et seq, 
 Zangerns says : " Quodlibet enim ac- 
 cidens prsesumitur in eodem statu, in 
 quo semel fuit, persistere, nisi contra 
 probetur mutatio." And see authorities 
 cited supra, § 115 and notes. 
 
 * See authorities cited in the preced- 
 ing notes and also Munro v. Munro, 
 
 7 CI. & F. 842, per Lord Brougham ; 
 Pitt V. Pitt, 4 Macq. 627 ; Crookenden 
 V. Fuller, 1 Swab. & Tr. 441 ; Jopp v. 
 Wood, 4 De G. J. & S. 616 ; Douglas v. 
 Douglas, L. E. 12 Eq. Cas. 617 ; Curl- 
 ing V. Thornton, 2 Add. Eccl. 6 ; Smith 
 V. The People, 44 111. 16. 
 
 * Authorities cited in note 2, supra, 
 and Munro v. Mnnro, 7 CI. & F. 842 ; 
 Crookenden v. Fuller, 1 Swab. & Tr. 
 
 441 ; Douglas v. Douglas, supra ; Bum- 
 ham a. Eangeley, 1 Wood. & M. 7 ; 
 White V. Brown, 1 Wall. Jr. C. Ct. 217; 
 Kilbum V. Bennett, 3 Mete. 199. 
 
 * De Bonneval v. De Bonneval, su- 
 pra ; Plummer v. Brandon, supra. 
 
 ° Authorities cited, supra, and The 
 Friendschaft, 3 Wheat. 14; The Ann 
 Green, 1 Gall. 274 ; The Joseph, 1 id. 
 545 ; Hylton v. Brown, 1 W. C. Ct. 
 298 ; Eead v. Bertrand, 4 id. 514 ; 
 United States v. Thorpe, 2 Bond, 340 ; 
 £!x parte Kenyon, 5 Dill. 385 ; John- 
 son V. Twenty-one Bales, 2 Paine, 601 ; 
 s. 0. Van Ness, 5 ; United States v. 
 Penelope, 2 Pet. Ad. 438 ; Sackett's 
 Case, 1 Mass. 68 ; Jennison «. Hap- 
 good, 10 Pick. 77 ; Sears v. Boston, 1 
 Mete. 250 ; Collester v. Hailey, 6 Gray, 
 517 ; Matter of Fitzgerald, 2 Caines, 
 318 ; Cath. Eobert's Will, 8 Paige Ch. 
 519 ; Crawford v. Wilson, 4 Barb. 504 ; 
 Isham 1). Gibbons, 1 Bradf. 69 ; Cad- 
 wallader v. Howell & Moore, 3 Harr. 
 (N. J.) 138 ; Clark ». Likens, 2 
 butcher, 207 ; Miller's Estate, 3 Eawle, 
 312 ; Fuller v. Bryan, 8 Harris, 144 ; 
 ife Lower Oxford Township Election, 
 11 Phila. 641 ; State v. Judge, 13 Ala. 
 805 ; Boyd v. Beck, 29 id. 703 ; State 
 V. Grizzard, 89 N. C. 115 ; Eagan v. 
 Lumsden, 2 Disney (Ohio), 168 ; Smith 
 V. Dalton, 1 Cin. S. C. Eep. 150 ; Yon- 
 key V. The State, 27 Ind. 236 ; Maddox 
 V. The State, 32 id. Ill ; Beardstown ■;;. 
 Virginia, 81 111. 541 ; Eue High, Ap- 
 pellant, 2 Dougl. (Mich.) 515 ; Smith 
 
 217 
 
§ 152.] THE LAW OP DOMICIL. [CHAP. VII. 
 
 difference whether such absence is for business, pleasure, 
 health, or personal security, nor to what length of time it is 
 prolonged, intention to return at a future time, however re- 
 mote, being sufficient to retain domicil.'' Sailors absent on 
 long voyages,^ soldiers * or ambassadors i° absent in the service 
 of their sovereign, and fugitives from political persecution," 
 are examples of the application of the principle ; they are pre- 
 sumed to retain their former domicil because their absence is 
 not inconsistent with intention to return. 
 
 § 152. Animus non revertendi. Mere Absence does not 
 destroy Domicil. — In Aikman v. Aikman,^ absence for forty- 
 seven years, a part of which time was spent in the maritime 
 service and a part in the pursuit of an illicit connection, was 
 held not to have worked a change of domicil in the absence 
 of proof of animus non revertendi. In De Bonneval v. De 
 Bonneval ^ a refugee from the French Revolution was held to 
 have retained his French domicil notwithstanding residence 
 of twenty years in England, intention to return to France 
 being presumed from the circumstances attending his depart- 
 ure. In Hodgson v. De Beauchesne ^ an Englishman was 
 held to have retained his English domicil after a residence of 
 twenty-three years in France, the circumstances attending it 
 not being deemed sufficient to warrant the inference of animus 
 non revertendi. In Jopp v. Wood * a Scotchman resident in 
 
 V. Smith, 4 Greene (Iowa), 266 ; Pen- " The question, therefore, which must 
 
 ley V. Waterhouse, 1 Iowa, 498 ; Love first be determined is, whether Dr. 
 
 V. Cherry, 24 id. 204 ; Vanderpoel v. Cochrane had purposely and actually 
 
 O'Hanlon, 53 id. 246 ; Bradley v. Fra- abandoned his Scotch domicil with the 
 
 ser, 54 id. 289 ; Walker n. Walker, intention never to return to it. If he 
 
 1 Mo. App. 404 ; Strattou v. Brigham, had not, it is quite immaterial what 
 
 2 Sneed, 420; Cole v. Lucas, 2 La. An. was the character of his residence in 
 946; Hardy v. DeLeon, 5 Tex. 211; France; for as long as his foi-mer domi- 
 Gouhenant u. CoekreU, 20 id. 96 ; cil continued he could not acquire an- 
 Voet, Ad Pand. 1. 5, t. 1, nos. 94 and other which would supplant it." 
 
 98; Henry, For. Law, 202; Demolombe, 8 gge infra, ch. 15. 
 
 Cours de Code Napoleon, t. 1, no. ^ See infra, id. 
 
 354 ; Story, Confl. of L. § 44 ; Whar- w See infra, ch. 17. 
 
 ton, Confl. of L. § 56 ; Westlake, Priv. " See infra, ch. 13. 
 
 Int. L. 1st ed. no. 38 ; Dicey, Dom. l 3 Maoq. H. L. Cas. 854. 
 
 p. 81. See also cases mentioned in the 2 1 Curteis, 856. 
 
 next section. S 12 Moore P. 0. C. 285. 
 
 ' See cases referred to in the next sec- * 34 Beav. 88, affirmed 4 De G. J. 
 tlon. Lord Chelmsford, in Moorhouse & S. 616. 
 V. Lord (10 H. L. Cas. 272, 287), says: 
 218 
 
§ 153.J CHANGE OP NATIONAL DOMICIL. [CHAP. Til. 
 
 India twenty-five years in business was held not to have lost 
 his Scotch domicil, as it appeared that he intended to return 
 to his native country after acquiring a fortune in India. In 
 Capdevielle's case," a Frenchman was held to have retained 
 his French domicil after an absence in trade of twenty-nine 
 years ; and in White v. Brown,^ an American was held not to 
 have lost his domicil by forty-eight years' absence for busi- 
 ness and pleasure. And so instances might be multiplied 
 indefinitely. It is true that in almost all of the cases cited 
 the absence was broken by occasional returns ; but as will be 
 seen hereafter, occasional returns will not of themselves re- 
 tain domicil.'' 
 
 § 153. Id. Abandonment not a mere Matter of Sentiment. — 
 As to the nature of abandonment, and the extent to which one 
 must intend to break away from his former place of abode, 
 there has been some difference of opinion. Abandonment is 
 certainly not merely a matter of sentiment ; a strong regret 
 at being compelled to give up one's former place of abode, " a 
 panting for one's native home," ^ " a yearning of the untrav- 
 elled heart," ^ " a lurking desire to return," ^ or a vague and 
 uncertain intention to do so depending upon some distant and 
 improbable contingency, is not inconsistent with it. In Hal- 
 dane v. Eckford,* the evidence showed that the testator re- 
 tained the deepest affection for his native country, — Scotland, 
 — its people and everything pertaining to it, which he mani- 
 fested on all occasions and in the most touching ways ; that 
 he had a great longing to return, and desired to buy land 
 there ; yet as his intention of permanently residing in Jersey 
 clearly appeared, a change of domicil was held. Such feel- 
 ings, although they sometimes throw light upon the intention 
 of the person whose domicil is in question, are generally too 
 impalpable for courts to deal with. But exactly where the 
 line is to be drawn to separate the feeling or intention which 
 will not prevent a change of domicil from the intention which 
 will, it is very difficult to say. 
 
 6 2 Hurl. & Colt. 985. 2 Barton v. Irasburgh, 33 Vt. 159. 
 
 6 1 Wall. Jr. C. Ct. 217. = In re Steer, 3 Hurl. & Colt. 
 
 ' § 160. 594. 
 
 1 Stanley c. Bemes, 3 Hagg. Eccl. « L. E. 8 Eq. Cas. 631. 
 
 373. 
 
 219 
 
§ 155.] THE LAW OP DOMICIL. [CHAP. VII. 
 
 § 154. Id. " Floating Intention to return." Story's Propo- 
 sition. — Story, in his work on the Conflict of Laws,^ has 
 made use of a phrase which has given rise to some criti- 
 cism and difficulty. He says that " if a person has actually 
 removed to another place with an intention of remaining there 
 for an indefinite time, and as a place of fixed present domicil, 
 it is to be deemed his place of domicil, notwithstanding he 
 may entertain a floating intention to return at some future 
 period." But the inquiry immediately suggests itself. What is 
 meant by " a floating intention " ? Certainly not that the 
 period for the return is simply indefinite and as yet unfixed, 
 for then the proposition would be in conflict with almost 
 every case in which a change of domicil has been decided 
 against, and would entirely destroy the distinction between 
 temporary and permanent absence. If it means a vague, un- 
 settled, flickering inclination, — "a lurking desire," or the 
 like, — thus much of- the proposition at least would not be 
 disputed. If, however, it means that the question of return 
 is to be determined by the happening or not happening of 
 some future event which is looked forward to, it requires 
 some discussion and more explicit statement. 
 
 § 155. Id. id. Examination of the Authorities upon which 
 Story's Proposition -was based. — The proposition was predi- 
 cated upon the cases of Bruce v. Bruce ^ and Stanley v. Bernes.^ 
 In the latter case the testator, an Irish Protestant by birth, 
 went to Lisbon in 1770, and there established himself in busi- 
 ness as a merchant. He soon afterwards married a lady who, 
 though of Irish parentage, was a Portuguese subject by birth ; 
 and in order to contract that marriage, he professed the Roman 
 Catholic religion. In 1798 he obtained letters of naturaliza- 
 tion as a Portuguese subject, which letters declared that he 
 had given satisfactory proof of his intention to reside for life 
 in the kingdom of Portugal ; and in fact he did reside within 
 its territories for fifty-six years, until his death in 1826. On 
 the other hand, during the later years of his life, he appears 
 to have frequently expressed an earnest wish and intention 
 
 1 §46. 
 
 1 2 Bos. & Pul. 229, note to Marsh v. Hutchinson. 
 ^ 3 Hagg. Eccl. 373. 
 220 
 
§ 155.] CHANGE OP NATIONAL DOMICIL. [CHAP. VII. 
 
 " to return to end his days in Ireland," and to have done 
 certain acts which might be looked upon as evidence of 
 animus revertendi. But this " floating intention " appears 
 to have been formed after his acquired domicil had vested, 
 and the case therefore cannot be considered as an authority 
 for the proposition referred to. The case of Bruce v. Bruce 
 was different. It was the first of that class of cases known 
 as the Anglo-Indian cases,^ in which it was held that one who 
 went out to India from England or Scotland, in the service of 
 the East India Company, for the purpose of making a fortune, 
 thereby gained an Indian domicil, although there existed the 
 ulterior intention of returning, when his object was accom- 
 plished, to his native land there to end his days, — a contin- 
 gency which was not only not unlikely to happen, but which 
 in fact was frequently fulfilled. It will be observed that this 
 doctrine is in conflict with the most approved definitions of 
 domicil, and particularly with that given with approbation 
 by Story * himself from Putnam v. Johnson ; ^ namely, " the 
 habitation fixed in any place without any present intention 
 of removing therefrom is domicil." 
 
 As the circumstances which gave rise to these cases and the 
 doctrine contained in them have passed away, a detailed ex- 
 amination of them here would be without profit. It is suf- 
 ficient to say that they gave rise to much discussion, and for 
 many years continued to puzzle English jurists who sought 
 to harmonize them with the general principles of domicil, 
 until they were finally put upon what seems to be their proper 
 ground, and is certainly a plausible ground ; namely, that the 
 East India Company was a g'ttasi-foreign government, and 
 that persons entering its service must be presumed to be 
 
 ' See Bracer. Bruce, supra; Whicker D. 532 ; Hepburn v. Skirving, 9 W. E. 
 
 V. Hume, 7 H. L. Cas. 124 ; Moor- 764 ; Attorney-General v. Pottinger, 6 
 
 house V. Lord, 10 id. 272 ; Hodgson v. Hurl. & Nor. 733 ; Arnott v. Groom, 9 
 
 De Beauchesne, 12 Moore P. C. C. 285 ; D. (Sc. Sess. Oas. 2d ser. 1846) 142 ; 
 
 Craigie v. Lewin, 3 Curteis, 435 ; Munroe Wauchope v. "Wauchope, 4 Kettie (Sc. 
 
 V. Douglas, 5 Madd. 379 ; Forbes v. Sess. Cas. 4th ser. 1877), 945; Dioey, 
 
 Forbes, Kay, 341 ; Drevon v. Drevon, Dom. pp. 140-143; Westlake, Priy. Int. 
 
 10 Jur. (N. 8.) 717 ; Cockrell v. Cock- L. 2d ed. §§ 249, 259. 
 rell, 25 L. J. Oh. 730 ; Lyall v. Paton, * Confl. of L. § 43. 
 id. 746 ; Allardice v. Onslow, 33 id. ^ lo Mass. 488. 
 
 434 ; Jle Tootal's Trusts, L. B. 23 Ch. 
 
 221 
 
§ 155.] 
 
 THE LAW OF DOMICIL. 
 
 [chap. 
 
 VII. 
 
 domiciled within its jurisdiction.^ The doctrine of these 
 cases, as originally (and in the time of Story) understood, 
 has therefore been discarded in England, and has been pro- 
 nounced by Kindersley, V. C, " anomalous, and an excres- 
 cence upon any principle as to domicil." ^ Accordingly, it has 
 been decided that one who left England and went to India for 
 the purpose of making his fortune in private business, intend- 
 ing finally to return, did not lose his English domicil, although 
 he remained in India twenty-five years and died there.^ And 
 
 ^ Jopp V. Wood, on appeal, 4 De G. 
 J. & S. 616. Turner, L. J., says : " At 
 the time those cases were decided, the 
 government of the East India Company- 
 was in a gieat degree, if not wholly, a 
 separate and independent government, 
 foreign to the government of this coun- 
 try ; and it may well have been thought 
 that persons who had contracted obliga- 
 tions with such government for service 
 abroad could not reasonably be con- 
 sidered to have intended to retain their 
 domicil here. They in fact became as 
 much estranged from this country as if 
 they had become servants of a foreign 
 government." And see Dicey, ubi 
 supra. 
 
 "' Drevon ii. Drevon, 10 Jur. (n. s.) 
 717 ; see also s. c. 34 L. J. Ch. 129. 
 
 8 Jopp». Wood, 34Beav. 88, affirmed 
 4 De G. J. & S. 616. In Doucet v. 
 Geoghegan, L. R. 9 Ch. D. 441, dec- 
 larations of the testator, whose domicil 
 of origin was French, to the effect that 
 he would return to France when he had 
 made his fortune, were relied upon to 
 prove that he had not acquired an Eng- 
 lish domicil, notwithstanding his resi- 
 dence in business for twenty-seven years 
 in England, etc. Jessel, M. B., and 
 James, L. .T., considered the declarations 
 too indefinite and insufficient to out- 
 weigh the facts of the testator's life. 
 Brett, L. J., however, used this lan- 
 guage ; " But it was said that he limited 
 the time by reference to the performance 
 of a condition ; namely, making his for- 
 tune. I think such a condition is not 
 sufficient ; it ought to be a condition 
 which limits the residence to a definite 
 2''2 
 
 time ; and when the condition refers 
 only to a time as indefinite as it can 
 possibly be, it cannot be said to confine 
 the residence to a definite time. There 
 can be nothing so indefinite as the time 
 at which a man expects to make his 
 fortune. Therefore, as the testator did 
 not fix a date, or make any definite 
 condition by which the residence was 
 limited to a definite time, it must be 
 taken that his intention was to make his 
 residencein England permanent." James, 
 L. J., said : " He is reported to have 
 said that when he had made his fortune 
 he would go back to France. A man 
 who says that is like a man who expects 
 to reach the horizon; he finds it at last 
 no nearer than it was at the beginning 
 of hLs journey. Nothing can be imag- 
 ined more indefinite than sueh declara- 
 tions ; they cannot outweigh the facts 
 of the testator's life." Malins, V. C, dis- 
 tinguishing the case from Jopp e.Wood, 
 says : "Jopp v. Wood is a case relating 
 to an Indian domicil which is quite 
 different from all other cases of domicil, 
 because it is well known that every one 
 who goes to India does so for the ex- 
 press purpose of making money and 
 returning as soon as possible." While 
 the expressions of Brett, L. J., cannot 
 be supported throughout, and the other 
 judges of the Court of Appeals relied 
 rather upon the insufficiency of the 
 testator's declarations to show a suf- 
 ficient animus remrtendi in the face of 
 the strong facts in evidence to the con- 
 trary, the case may be reconciled with 
 Jopp V. Wood upon the ground which 
 the Vice- Chancellor seems to suggest ; 
 
§ 156.] 
 
 CHANGE OP NATIONAL DOMICIL. [CHAP. VII, 
 
 such was the doctrine of the Dutch jurists even with regard 
 to persons who went to India in the service of the Dutch East 
 India Company. Thus it was held by a high authority, Groene- 
 wegen, that a person whose domicil was at Delft, having, with 
 a view to make his fortune, gone to the East Indies in the 
 service of that company, and died there, was at the time of 
 his death domiciled at Delft.^ Such too was the opinion of 
 John Voet.i* 
 
 § 156. Id. Near and Remote Contingency. Lord Campbell in 
 Aikman v. Aikman. — In Aikman V. Aikman,! Lord Chancel- 
 lor Campbell draws the distinction between a near and a re- 
 mote contingency, remarking that " if a man is settled in a 
 foreign country in some permanent pursuit requiring his resi- 
 dence there, a mere intention to return to his native country 
 on a doubtful contingency will not prevent such residence in 
 a foreign country from putting an end to his domicil of origin.^ 
 
 ger (as reported 30 L. J. Ex. 284, 292) 
 Bramwell, B., says : " One word with 
 regard to the intention. [The counsel 
 for the defendant] says, and I think he 
 errs there, that Sir Henry Pottinger did 
 not intend to remain in England, because 
 he contemplated that he might possibly 
 go back to India. I think there is a 
 very common mistake made in such 
 cases, which is the assumption that a, 
 man must absolutely intend one of two 
 things, for it may be that he has no 
 absolute intention of doing either. It 
 may be that Sir Henry Pottinger did not 
 contemplate the case at all arising of an 
 opportunity of going back to India. So 
 that, if he had been suddenly appealed 
 to upon the subject, he might have 
 said, ' I have never thought of it.' I 
 think, however, it appears that he had 
 contemplated the possibility of return- 
 ing to India. But is it to be said_ that 
 a contingent intention of that kind de- 
 feats the intention which is necessary 
 to accompany the factum, in order to 
 establish a domicil ? Most assuredly 
 not. There is not a man who has not 
 contingent intentions to do something 
 that would be very much to his benefit 
 if the occasion arises. But if every 
 such intention, or expression of inten- 
 
 223 
 
 inasmuch as it is a well-known fact that 
 few persons who emigrate to a neigh- 
 boring country for the purpose of mak- 
 ing a fortune ever return after the 
 accomplishment of their purpose ; while 
 on the other hand it is an equally well- 
 known fact that a large proportion of 
 those who go to Eastern countries for 
 the same purpose do return. The in- 
 ference, therefore, may be drawn that the 
 animus revertendi in the former case is 
 extremely vague and its fulfilment very 
 improbable, whUe in the latter case the 
 animiis revertendi is distinct and fixed, 
 and its accomplishment probable. In 
 other words, the two cases are those of 
 a probable and an improbable contin- 
 gency. 
 
 9 Henry, For. L, p. 203, from 
 Hollandsche Consultatien, vol. vi. p. 
 651. 
 
 " Ad Pand. 1. 5, t 1, no. 98. 
 
 1 3 Macq. H. L. Cas. 854. See also 
 remarks of Dr. Lushington in Ander- 
 son V. LanenviUe, 9 Moore P. C. C. 
 325. 
 
 ' "This," says the editor of the 
 eighth edition of Story on the Conflict 
 of Laws, "is probably what Story meant 
 by ' a floating intention to return ' " 
 (p. 52). In Attorney-General v. Pottin- 
 
§ 157.] THE LAW OP DOMICIL. [CHAP. VII. 
 
 But a residence m a foreign country for pleasure, lawful or 
 illicit, which residence may be changed at any moment with- 
 out the violation of any contract or any duty, and is accom- 
 panied by an intention of going back to reside in the place 
 of birth on the happening of an event which in the course 
 of nature must speedily happen, cannot be considered as indi- 
 cating the purpose to live and die abroad." And the same is 
 doubtless true with regard to residence for purposes of busi- 
 ness ; if the event looked forward to, upon which the return 
 depends, is likely to happen and to happen soon, it probably 
 makes little difference whether residence is for pleasure or 
 business. The remarks of Lord Campbell are made with ref- 
 erence to a change from the country of origin to a foreign 
 country, but they would probably apply with equal force 
 where the question was one of abandonment of an acquired 
 domicil. 
 
 §157. Id. id. Craigie V. Lewin. — The distinction is illus- 
 trated by some of the East India cases. In Craigie v. Lewin,^ 
 Lieutenant-Colonel Craigie, a Scotchman by birth, at an early 
 age entered the East India military service, and in 1837, hav- 
 ing attained the rank of Lieutenant-Colonel, came to Scotland 
 on leave of absence for three years, which could however be 
 renewed for two years longer. It was evident from all the 
 circumstances that he desired to settle permanently in Scot- 
 land, but unless he attained the rank of Colonel he was liable 
 at the expiration of his leave of absence to be called back to 
 India. As he had long been in the service of the Company, it 
 was probable, though by no means certain, that he would at- 
 tain that rank before his leave expired. He died, however, in 
 1840, before the expiration of his leave, and before he had 
 attained the rank of Colonel. It was held by Sir Herbert 
 Jenner Fust, that he retained his Anglo-Indian domicil. On 
 the other hand, after attaining the regimental rank of Colonel, 
 the military servants of the East India Company might reside 
 abroad for an unlimited time, subject to recall only in cases 
 of extreme emergency, which appear rarely to have happened. 
 
 tion, prevented a man having a fixed This passage is not so fully reported In 
 domicil, no man would ever have a dom- the regular report, 6 Hurl. & Nor. 747. 
 icil at all, except his domicil of origin." i 8 Curteis, 435. 
 
 224 
 
§ 158.] CHANGE OP NATIONAL DOMIOIL. [CHAP. VII. 
 
 Such remote possibility of return has not been considered 
 by the English courts sufficient to prevent a change of 
 domicil.^ 
 
 § 158. Id. Id. — Although the distinction between a near 
 and a remote contingency seems to be a safe enough one, if 
 properly applied, it is difficult to say how far it would be rec- 
 ognized now in England in view of the later cases. Lord 
 Wensleydale, in Aikman v. Aikman,i observed : " Every man's 
 domicil of origin must be presumed to continue until he has 
 acquired another sole domicil by actual residence with in- 
 tention of abandoning his domicil of origin. This change 
 must be animo et facto, and the burthen of proof unquestionably 
 rests upon the party who asserts the change." This propo- 
 sition is only a repetition in somewhat different phrase of the 
 third rule of Lord Alvanley in Somerville v. Somerville,^ but 
 it seems henceforth to have attracted greater attention. It 
 has been frequently repeated in the later cases, and seems to 
 have been understood as shutting out all animus revertendi. 
 In Capdevielle's case,^ it was held by Martin and Channell, 
 B.B., to be entirely in conflict with Story's proposition given 
 above. 
 
 In Whicker v. Hume * and Moorhouse v. Lord,^ very strong 
 expressions were used, — that a man must intend quatenus in 
 illo exuere patriam ; " must mean to cease to be a Scotchman 
 and become an Englishman or a Frenchman," etc. ; in short, 
 that he must do everything in his power to rid himself of his 
 connection with his former domicil. In the latter case Lord 
 Chelmsford declared his opinion that a change of domicil 
 could not take place if any event, certain or uncertain, which 
 might induce a subsequent change of residence were looked 
 forward to. It will be observed that all the cases above re- 
 ferred to, except Whicker v. Hume, were cases in which an 
 abandonment of domicil of origin was sought to be shown ; 
 but if the principles are correct, they are also applicable, 
 though with somewhat diminished force, to the abandonment 
 
 2 Attorney- General v. Pottinger, 6 25 yes. Jr. 750. 
 
 Hurl. & Nor. 733 ; Forbes ii. Forbes, = 2 Hurl. & Colt. 985. 
 
 Kay, 341. * 7 H. L. Gas. 124. 
 
 1 3 Maoq. H. L. Gas. 854, 877. ^ 10 id. 272. 
 
 15 225 
 
§ 159.] THE LAW OP DOMICIL. [CHAP. VII. 
 
 of acquired domicil.^ It may therefore be possible to con- 
 ceive a floating intention so vague and impalpable as to be 
 able to run the gauntlet of the recent English decisions ; but 
 the contingency upon which it depends would have to be 
 extremely remote, or the intention itself of a very shadowy 
 character. It is true that in Udny v. Udny "^ and its se- 
 quents, the extreme expressions used in Whicker v. Hume 
 and Moorhouse v. Lord are criticised, and the doctrine of 
 those cases is somewhat modified ; but there is every reason to 
 believe that the English courts would not now hold a change 
 of domicil, particularly to a foreign country, without the 
 strongest and most unequivocal proof that the former place 
 of abode had been completely and finally abandoned as a 
 place of abode. In Brunei v. Brunei,^ the deceased had de- 
 clared that he might return to France ; but all the indicia of 
 animus manendi were so strong as to show that the animus 
 revertendi, if entertained at all, was very vague, and a change 
 of domicil was held. 
 
 § 1'59. Id. story's Proposition in the American Cases. — 
 In America, Story's proposition has been received, and is 
 quoted and approved in many cases,^ without however any 
 special attempt having been made to get at its meaning. 
 Some confusion has been introduced in several cases involving 
 the question of abandonment of ^wasi-national domicil, in 
 which it is held that if the intention be to return at a future 
 indefinite time it is not sufficient to prevent a change,^ thus 
 
 ' See, e. g.. Maxwell v. McClure, 6 predeceased Mm. But see Ee Capde- 
 
 .Tur. (n. s.) 407, and the remarks of the vielle, 2 Hurl. & Colt. 985. 
 Scotch judges in this case mi nom. i Doyle ■». Clark, 1 Flipp. 586 ; 
 
 Donaldson v. McClure, 20 D. (So. Hart «. Lindsey, 17 N. H. 235; Ander- 
 
 Sess. Gas. 2d ser. 1857) 307. son v. Anderson, 42 Vt. 350 ; State v. 
 
 ' L. R. 1 Sch. App. 411. Frest, 4 Harr. (Del.) 558 ; Kinggold v. 
 
 8 L. R. 12 Eq. Cas. 298. See also Barley, 5 Md. 186 ; Re Toner, 39 Ala. 
 
 Doucetc. Geoghegan, st{pra,§ 155, note 454; Rue High, Appellant, 2 Doug. 
 
 8. In Anderson v. Laneuville, 9 Moore (Mich.) 515 ; State v. Groome, 10 Iowa, 
 
 P. C. 0. 325, it was held that a person 308 ; Stratton v. Brigham, 2 Sneed, 
 
 whose domicil had been English gained 420 ; Kellar v. Baird, 5 Heisk. 39 ; and 
 
 a domicil in France by residence there cases cited in next note, 
 with intention to remain during the life ^ Holmes v. Greene, 7 Gray, 299 ; 
 
 of another person of about the same age, Sleeper v. Paige, 15 id. 349 ; Hallet v. 
 
 and who actually survived him, not- Bassett.lOO Mass.l67;'VenableD. Panld- 
 
 withstanding he had expressed his in- ing, 19 Minn. 488; Graham v. Trimmer, 
 
 tention to return to England in case she 6 Kans. 230; and see infra, § 171. 
 226 
 
§ 160.] CHANGE OF NATIONAL DOMICIL. [CHAP. VII. 
 
 breaking down the distinction between temporary and per- 
 manent absence. This doctrine is however confined to a few 
 cases, and appears to have crept in from the cases of municipal 
 domicil. But the great weight of the best-considered Amer- 
 ican cases seems to be that no change can occur where there 
 is an intention to return, unless that intention be very vague 
 or depend upon a remote contingency. Our courts, however, 
 have not used language so strong as that of some of the late 
 English cases. 
 
 § 160. Id. Occasional Visits to, and Retention of Dwelling- 
 house at, rormer Place of Abode. — The former place of abode 
 must be abandoned only as a place of abode. Therefore occa- 
 sional returns,' or an intention to return for temporary pur- 
 poses of business,^ or pleasure, to remove one's family,^ or the 
 like, will not prevent a change of domicil. The mere reten- 
 tion of landed estate at the former place of abode is certainly 
 not inconsistent with abandonment ; * but whether the reten- 
 tion of a place of residence — a furnished house or the like — 
 in which the person may, and probably does intend to, reside 
 occasionally, is or is not consistent with abandonment, has 
 been the subject of some difference of opinion. In Aikman v. 
 Aikman," Lord Campbell, and in Maxwell v. McClure,* Lords 
 
 1 Anderson v. Laneuville, 9 Moore back for the purpose of doing it. For 
 P. C. C. 325 ; Hoskins v. Mathews, 8 De it is not necessary that a man should 
 G. M. & 6. 13 ; Allardice v. Onslow, 9 determine never to go back, either tem- 
 L. T. (n. 8. ) 67i; Piatt v. Attorney-Gen- porarily or permanently, in order to lose 
 eral, L. K. 3 App. Cas. 336 ; Doucet v. his residence here." And see cases in 
 Geoghegan, L. B. 9 Ch. D. HI ; Be Steer, preceding note. 
 
 3 Hurl. & Nor. 594; Gillis v. Gillis, ' Bnmham i). Eangeley, mpra ,- Eus- 
 
 Ir. B. 8 Eq. 597 ; Bumham v. Range- sell v. Randolph, supra, 
 
 ley, 1 Wood. & M. 7 ; Kemna v. Brock- * See infra, § 417 et seq. 
 
 haus, 10 Biss. 128 ; Williamson v. Pa- « 3 Macq. H. L. Cas. 854 ; s. c. 7 
 
 risien, 1 Johns. Ch. 389 ; Hood's Estate, Jur. (n. s.) 1017. Lord Campbell says: 
 
 21 Pa. St. 106 ; State v. Frest, 4 Harr. " I cannot accede to the doctrine that 
 
 (Del.) 558; Swaney v. Hutchins, 13Neb. if a man has lost his original domicil by 
 
 266 ; Russell D. Randolph, 11 Tex. 460. acquiring a domicil in a foreign country, 
 
 2 In State v. Frest, supra, the court he cannot recover his original domicil 
 said : " If a person intending to break while he retains any place of residence in 
 up his business in Wilmington and re- the foreign country. He certainly cannot 
 move to Philadelphia or elsewhere as a have two domicils of succession at the 
 home, should go there and exercise his same point of time, but the anirmis 
 trade, this would be sufficient evidence must determine the effect of a resi- 
 of a change of domicil, even though he dence in the foreign country being 
 should before leaving secure a job of retained." 
 
 work at Wilmington, and intend to go '6 Jur. (n. s. ) 407. In this case the 
 
 227 
 
§ 160.] 
 
 THE LAW OP DOMICIL. 
 
 [chap. VII. 
 
 Campbell and Cranworth, while admitting that the retention 
 of such residence at the place of acquired domicil was a very 
 
 person whose domioil was in question, 
 being originally a Scotcliman, had gone 
 to England while very young, and hav- 
 ing established himself there in busi- 
 ness had resided in that country for a 
 number of years. His house having 
 been taken by a railway company, after 
 some unsuccessful attempts to procure a 
 suitable residence in the neighborhood, 
 he repaired a house which had been oc- 
 cupied by his father-in-law, and after 
 having resided in it for a few months, 
 removed his family to a mansion in Scot- 
 land, which he had erected there, leav- 
 ing a housekeeper in charge of the 
 house in England. Many strong cir- 
 cumstances combined to show his inten- 
 tion to return to England, and it was 
 accordingly held that his Scotch domi- 
 cil had not reverted. The retention of 
 the repaired house in England, while 
 commented upon, was not strongly re- 
 lied upon as evidence of animus rever- 
 tendi, there being abundant evidence 
 without it. Lord Campbell said : " I 
 think that although the residence re- 
 mained in England, that would not abso- 
 lutely and completely prevent a change 
 of domicil to Scotland, for one can easily 
 conceive evidence being produced to 
 show that although the residence was 
 retained in England the domicil was 
 transferred ; and in the course of the 
 argument cases were put, in which I con- 
 curred, to show that that would be the 
 result. But then the orna clearly lies 
 upon the party who alleges the change 
 of domicil. There being a residence in 
 England still subsisting, and that resi- 
 dence being used from time to time by 
 the party whose domicil is in question, 
 it would require strong evidence to show 
 that while that residence was retained 
 and used, there had been a transfer of 
 domicil." Lord Cranworth said ; "I do 
 not at all mean to say that he might not 
 have changed his domicil even if he had 
 retained his residence at Wigan. That 
 would not be a case very easy of proof ; 
 but such a case might occur, as in one 
 case which I suggested to the counsel 
 
 228 
 
 in the course of the argument. A per- 
 son might have a country residence at 
 some watering-place on the French coast 
 — at Boulogne, for instance — where he 
 might have been living, not because he 
 was embarrassed, but for some other 
 reason he might have been so living 
 there that ex concessis he was domiciled 
 there. But he might have a mag- 
 nificent estate left him in Yorkshire, 
 which might induce him to quit Bou- 
 logne and come and live in Yorkshire; 
 but nevertheless he likes Boulogne a-s 
 a bathing-place, and retains his house 
 there, and goes there every year. I 
 should think it would be a difficult 
 proposition to maintain that if he had 
 retained that house and gone there every 
 year for a month, having lived eleven 
 months in the year in Yorkshire, and had 
 so gone on for twelve years, his will 
 executed according to the English Stat- 
 ute of Wills would not have passed his 
 personal property. That, I think, never 
 could be the law. At the same time it 
 is perfectly true that when a residence 
 is retained in a place where the party 
 has been domiciled, it is a circumstance, 
 and a very cogent circumstance, to show 
 that that party does not mean to change 
 his domicil." Lord Wensleydale said : 
 " I cannot myself conceive a case in 
 which it could happen that a man might 
 be said to have intended to have aban- 
 doned his former domicil unless he had 
 quitted the place where he had resided 
 and ceased to reside there. If he still 
 kept a residence in that place with the 
 intention of residing there indefinitely 
 at any time when he chose to reside 
 there, I cannot conceive that in such a 
 case as that (though I do not deny that 
 such a case might happen) he could 
 have abandoned his former domicil and 
 acquired a new domicil. I confess 1 
 have difficulty in conceiving that case, 
 although my noble and learned friend 
 on the woolsack, and my noble and 
 learned friend who last addressed your 
 lordships conceived that there might 
 be such a case." 
 
§ 161.] CHANGE OP NATIONAL DOMICIL. [CHAP. VII. 
 
 cogent circumstance to show that the party did not intend to 
 change his domicil, were of opinion that it would not be a bar 
 to reverter of domicil of origin. On the other hand, Lord 
 Wensleydale in the latter case declared himself unable to 
 conceive a case in which a change of domicil could take place 
 under such circumstances. In Forbes v. Forbes/ Wood, V. C, 
 inclined to the opinion that the retention of such residence 
 was not inconsistent with abandonment of a resumed domicil 
 of origin in favor of a third place. 
 
 § 161. Animus non revertendi need not be Express or Con- 
 scious. — Abandonment may be either express or implied ; 
 that is to say, a person may (a), upon leaving the place of his 
 domicil (or afterwards), expressly and definitively determine 
 not to return to it (and this may happen whether or not he 
 selects a new place of abode), or (J) he may settle in a new 
 place in a manner so permanent and exclusive as to be en- 
 tirely incompatible with an intention to return, although he 
 may never have consciously formed any resolution upon that 
 particular point.^ In other words, animus non revertendi may 
 be implied in animus manendi; but when the latter is relied 
 
 ' Kay, 341. jects happen not unfrequently in such 
 ^ How far the animus (either nmi a space of time as the thirty-two years' 
 revertendi or manendi) must be distinct residence in England, which occurred 
 and conscious, is by no means clear, in Udny v. Udny, Law Eep. 1 H. L. 
 Wickens, V. C, in Douglas v. Douglas, Sc. 441. But in cases not involving a 
 L. R. 12 Eq. Cas. 617, 645, says : " It very long time, I apprehend that in 
 may perhaps be added, that to prove order to establish a change of domicil it 
 such an intention as is necessary to es- must be shown that the intention re- 
 tablish a change of domicil, and in the quired actually existed, or made reason- 
 absence of evidence that the intention ably certain that it would have been 
 actually existed (which can be shown formed or expressed if the question had 
 by express declaration, and in no other arisen in a form requiring a deliberate 
 way), the evidence must lead to the in- or solemn determination. What, there- 
 ference that if the question had been fore, has to be considered is, whether 
 formally submitted to the person whose the testator, William Douglas, ever ao- 
 domicil is in question, he would have tually declared a final and deliberate 
 expressed his wish in favor of a change, intention of settling in England, or 
 Possibly, where the actual residence in whether his conduct and declarations lead 
 the acquired domicil has been very long, to the belief that he would have de- 
 an unconscious change of mind may be clared such an intention if the necessity 
 inferred, though it may be doubtful of making his election between the coun- 
 whether it would have been declared or tries had arisen. " See also the remarks 
 admitted if the question had been actu- of Bramwell, B., in Attorney-General 
 ally raised. Such unconscious changes v. Pottinger, mpra, § 156, note 2, and 
 of opinion on the most important sub- Dicey, Dom. pp. 78, 79. 
 
 229 
 
§ 162.] 
 
 THE LAW OP DOMICIL. 
 
 [chap, VII. 
 
 upon to prove the former, the inference must be clear and 
 unequivocal.^ 
 
 § 162. (2) Animus Manendi. — But the animus non rever- 
 tendi is only one side of the animus which is required for the 
 establishment of domicil of choice. When a person has aban- 
 doned his former place of abode , that is, has left it cum animo 
 non revertendi, and has accomplished the factum of a change 
 of bodily presence to another place in order to establish a 
 domicil there, one further element is necessary ; namely, in- 
 tention to " settle " there (to use the significant word adopted 
 by the recent English cases), — animus manendi. As tempo - 
 j g,ry ahi^enc e cum animo revertendi from a former place of 
 abode does not destroy domicil there,^ so temporary presence 
 3lace sine animo manendi does not es hrbllsh iloniic il 
 
 m a 
 
 there ;^ and this is so even if animus non revertendi be 
 
 2 In Moorhouse v. Lord (10 H. L. 
 Cas. 272, 286), Lord Chelmsford says : 
 " In a question of change of domicil the 
 attention must not be too closely con- 
 fiued to the nature and character of the 
 resideuce by which the new domicil is 
 supposed to have been acquired. It may 
 possibly be of such a description as to 
 show an intention to abandon the 
 former domicil ; but that intention 
 must be clearly and unequivocally 
 proved." In Dupuy i: Wurtz, 53 
 N. Y. 656, 568, Eapallo, J., after re- 
 viewing a number of English cases, 
 says : " In all these oases it was upon 
 the ground of a clearly proved volun- 
 tary and intentional acquisition of a 
 foreign domicil that the courts held the 
 former domicil abandoned. The late 
 cases of Jopp v. Wood and Moorhouse 
 ■». Lord proceed upon the ground that 
 in order to acquire a new domicil there 
 must be an intention to abandon the 
 existing domicil. All the authorities 
 agree that to effect a change of domicil 
 there must be an intention to do both. 
 Some of them hold that the intention 
 to do one implies an intention to do 
 the other." 
 
 1 Supra, §§ 125, 126, 135, 136, 151. 
 
 ^ The authorities upon this point are 
 very abundant. Among others are the 
 
 230 
 
 following : Ommanney v. Bingham, 
 Rob. Peirs. Sue. 468 (s. c. partially 
 given in argument of counsel in Somer- 
 ville v. Somerville, 5 Ves. Jr. 757 et 
 seq. ) ; Bempde v. Johnstone, 3 Ves. Jr. 
 198; Pitt V. Pitt, 4 Macq. H. L. Cas. 
 627 ; iVIoorhouse v. Lord, 10 H. L. 
 Cas. 272 ; Bell v. Kennedy, L. E. 1 Sch. 
 App. 307 ; Udny v. Udny, id. 441 ; 
 Jopp V. Wood, 34 Beav. 88 ; affirmed, 4 
 De G. J. & S. 616 ; Casew. Clarke, 5 Mas. 
 70 ; Bead v. Bertrand, 4 Wash. C. Ct. 
 514 ; United States v. Thorpe, 2 Bond, 
 340 ; Kemna v. Brockhaus, 10 Biss. 
 128 ; United States v. Penelope, 2 Pet. 
 Ad. 438; Jennison v. Hapgood, 10 Pick. 
 77 ; Sears v. Boston, 1 Met. 250; Shaw 
 V. Shaw, 98 Mass. 158 ; Matter of 
 Wrigley, 8 Wend. 134 ; Dupuy v. 
 Wurtz, 53 N. Y. 556; Chaine ■». Wil- 
 son, 1 Bosw. 673 ; Isham v. Gibbons, 
 1 Bradf. 69 ; Black v. Black, 4 id. 174; 
 Ensor v. Graff, 43 Md. 391 ; Plummer 
 V. Brandon, 5 Ired. Eq. 190 ; State v. 
 Hallet, 8 Ala. 159 ; Veile v. Koch, 27 
 111. 129 ; Smith v. Smith, 4 Greene 
 (Iowa), 266 ; Stater. Minniek, 16 Iowa, 
 123 ; Church v. Grossman, 49 id. 447 ; 
 State V. Dodge, 66 Wis. 79 ; Gravillon 
 V. Richards Ex'rs, 13 La. Rep. 293 ; 
 Cole V. Lucas, 2 La. An. 946 ; Republic 
 V. Skidmore, 2 Tex. 261 ; Story, Coufl. 
 
§ 163.] CHANGE OP NATIONAL DOMICIL. [CHAP. VII. 
 
 made to appear.* " A person's being at a place is prima facie 
 evidence that he is domiciled at that place ; " * but this prima 
 fades disappears whenever it is shown that he was formerly 
 domiciled elsewhere, and is not where he is now found eum 
 animo manendi? With respect to the nature of the animus 
 manendi there has been considerable confusion and conflict, 
 particularly in this country, largely growing out of the prac- 
 tice among American judges of relying, without sufficient 
 discrimination, upon cases of municipal domicil as authorities 
 in cases involving questions of national or jwas^-national 
 domicil. 
 
 § 163. Id. Roman Law. — The Roman law throws little 
 light upon the nature of the animus manendi. It devotes 
 itself to the enumeration of the most usual and striking, and 
 therefore the most important, external physical evidences of 
 domicil, rather than to a description of the animus requisite 
 for the establishment of domicil. About the only direct light 
 which it throws upon the inquiry is contained in the words 
 used in the definition given in the Code, " Unde rursus non 
 sit discessurus, si nihil avocet ; " ^ and this light is but feeble 
 and uncertain. Upon the whole, however, we are left to 
 
 of L. § 44 ; Wharton, Confl. of L. § 56 ; the Scotch Court of Session held it to 
 
 Dicey, Dom. p. 76 ei sej. And see the he Scotch, hut in this the interlocutor 
 
 authorities referred to, supra, §§ 125, was reversed by the House of Lords, who 
 
 126, 135, 136, and notes. held that at the point of time in ques- 
 
 * Although numerous other authori- tion his domicil of origin continued. In 
 
 ties might be cited, this point is suffi- Udny v. Udny (id. 441, see infra, § 192 
 
 ciently illustrated and enforced by the et seq.), the House of Lords held that 
 
 following cases : In Bell v. Kennedy, even if Colonel Udny had acquired an 
 
 L. R. 1 Sch. App. 307, B., whose dom- English domicil (to which view their 
 
 ioil of origin was in Jamaica, left that lordships seem to have decidedly in- 
 
 island "for good," with the intention clined), his Scotch domicil of origin 
 
 of settling somewhere in Great Britain, reverted upon his quitting England sine 
 
 He visited both England and Scotland, animo revertendi, and that he did Mot 
 
 coming to the latter country with the acquire a domicil in France by residence 
 
 intention of settling there, if he could there for nine years, there being no suffi- 
 
 purchase an estate to suit him. He cient evidence of am,irrMs manendi. See 
 
 looked after several, and made an offer also infra. 
 
 for one — Enterkine — which was re- * Bruce v. Bruce, 2 Bos. & Pul. 229, 
 
 jected. He finally leased a house for one note ; Bempde v. Johnstone, 3 Ves. Jr. 
 
 year, and while residing in it his wife 198, and infra, § 375. 
 died. Subsequently he made a more ^ See infra, § 376. 
 favorable oflfer for Enterkine, which was ^ Code 10, t. 39, 1. 7. See supra, 
 
 accepted. The question being as to his § 5, note 1. 
 domicil at the time of his wife's death, 
 
 231 
 
§ 164.J THE LAW OF DOMICIL. [CHAP. TIT. 
 
 infer that the domicil or home which it so pathetically de- 
 scribes, could not be a mere temporary abode, inasmuch as the 
 evidences which it enumerates are in a general way evidences 
 of permanency. And moreover the Code^ contains a pro- 
 vision, following the Ordinance of Hadrian, that residence in 
 a place for the sake of study should not be deemed to confer 
 domicil there unless such residence had been continued for 
 ten years ; and the same rule was applied to the father of a 
 student whose residence was chosen for the sake of being 
 near his student son. According to Savigny,^ such residence 
 thus prolonged merely raised the presumption of a purpose of 
 constant residence, and so it was understood by others.* By 
 its terms this provision of the Code applied only to the cases 
 of the student and his father ; but this was probably only the 
 particular application of the general principle that residence 
 in a place for a special and temporary purpose does not con- 
 stitute domicil ; and thus understood it goes far to corrobo- 
 rate the inference above referred to, that permanency was an 
 essential ingredient in the Roman idea of domicil. 
 
 § 164. Id. Continental Jurists. — Menochius ^ remarks : " Et 
 primum dicendum est habitationem et domicilium inter se 
 differre. Nam domicilium habere quis dicitur in loco qui 
 animo ibi commorandi perpetuo habitat. Is vero qui pro 
 emptione aliquS. ex causS., puta studiorum, vel litis, vel simili 
 commoratur habitare dicetur." 
 
 Donellus ^ says : " Habitatio non est satis, animum consis- 
 tendi accedere oportet ; ut quis scilicet ita ibi inhabitet, ut ibi 
 sedem sibi constituent, id est, ut ibi perpetuo consistat, non 
 temporis causd ; nisi aliquid inde avocet. Quisquis temporis 
 causS. alicubi commoratur et consistit, ibi domicilium non 
 habet. Veluti, si qui legationis causi. aliquo venerint, et dum 
 legatione funguntur, ibi habitationem conduxerint ; si qui 
 venerint aliquo negotiandi, aut mercaturae discendae causS.. 
 Ipsi adeo studiosi, qui aliquo venerint studiorum caus&, hoc 
 
 2 Code 10, t. 39, 1. 2. To this may * Infra, % 383 et seq. 
 te added the distinction which Ulpian > De Prsesumptionibus, 1. 6, prses. 
 
 draws between Aaftiteiio and domiriKwrn. 42, no, 2. 
 Dig. 47, t. 10, 1. 5, § 5. 2 De Jure Civili, 1. 17, c. 12, p. 978, 
 
 ' System, etc. § 353 (Guthrie's trans. 40. 
 p. 98). 
 
 232 
 
§ 164.J CHANGE OP NATIONAL DOMICIL. [CHAP. VII. 
 
 ipso, quod ibi ita consistant, ut post studia completa domum 
 redeant; quantocunque tempore ibi constiterint ; tamen ibi 
 domicilium non habeiit." John Voet ^ says : " Illud certum 
 est . . . domicilium constitui, . . . neque sol& habitatione, 
 sine proposito illic perpetuo morandi." So Zangerus : * " Non 
 enim ex eo, quod quis focum et ignem teneat, arguitur domi- 
 cilii constitutio, utpote, quae ex solo animo perpetuo habitandi 
 in loco dependet." 
 
 The French, like the Roman, jurists have been more inclined 
 to look at the external evidences which indicate the setting 
 up of a " principal establishment " than to inquire into the 
 nature of the animus manendi. Nevertheless they insist upon 
 substantial permanency. Thus Demolombe,^ in pointing out 
 the similarity between the definition contained in the Roman 
 Code and that of the Code Civil, — namely, " Le domicile de 
 tout Fran9ais ... est au lieu oii il a son principal dtablisse- 
 ment," — says : " That is to say, at the place which he has made 
 the centre of his affections, of his affairs, and of his habits, 
 the seat, in fine, of his social existence, rerum aefortunarum 
 suarum summam, at the place where he is established in a 
 manner permanent and durable, with the intention of being 
 held there, of being there attached, of there returning sooner 
 or later whenever he is absent." Again,® in arguing against 
 the possibility of a Frenchman acquiring a foreign domicil in 
 complete derogation of his French domicil, he says : " I add 
 that the establishment of a Frenchman in a foreign country, 
 so long as he has not been there naturalized, does not present 
 the characteristics of duration and fixity which constitute dom- 
 icil ; the Frenchman is always presumed to preserve V esprit 
 de retour, and hence to be in a foreign country only more or 
 less temporarily." And again,'' in speaking of the circum- 
 stances which may take the place of formal declarations, he 
 says : " That which is above all necessary, when the transla- 
 tion of domicil is in question, is that they should give evidence 
 at once of the complete abandonment of the old place and the 
 
 8 Ad Pand. 1. 5, t. 1, no. 98. « m. no. 349. 
 
 * De Except, pt. 2, c. 1, no. 18. ' Id. no. 354. 
 
 5 Cours de Code KapoUon, t. 1, no. 
 344. 
 
 233 
 
§ 166.] THE LAW OP DOMICIL. [CHAP. VII. 
 
 definitive adoption of the new. It is then, particularly, that 
 habitation in the new place ought to present the character- 
 istics of legal possession ; that is to say, they ought to have 
 nothing transient, provisional, or accidental." 
 
 § 165. Id. id. — Savigny ^ thus defines domicil : " That 
 place is to be regarded as a man's domicil which he has freely 
 chosen for his permanent abode, and thus for the centre at 
 once of his legal relations and his business. The term ' per- 
 manent abode,' however, excludes neither a temporary absence 
 nor a future change, the reservation of which faculty is plainly 
 implied ; it is only meant that the intention of mere transitory 
 residence must not at present exist. . . . Residence not ac- 
 companied with the present intention that it is to be perma- 
 nent and perpetual does not constitute domicil, even if by 
 accident it continues for a long time, and therefore is not 
 merely transient." Vattel ^ defines domicil to be " the habi- 
 tation fixed in any place with an intention of always staying 
 there ; " and his definition has been very frequently cited, 
 commented upon, and criticised in England and America. 
 Calvo ^ quotes, as in his opinion the most exact, a definition 
 which he attributes to Judge Rush, but which is in fact the 
 definition of Judge Rush somewhat modified by Phillimore, — 
 namely : " Domicil is a residence at a particular place, accom- 
 panied with positive or presumptive proof of an intention to 
 remain there for an unlimited time." 
 
 It will thus be seen that the continental jurists, although 
 differing among themselves perhaps with respect to the 
 degree of permanency, agree in requiring for the animus 
 manendi the character of substantial permanency ; and this 
 they require for all grades of domicil, whether national, quasi- 
 national, or municipal. 
 
 § 166. Id. British Authorities. — In the British cases and 
 by the British text-writers several forms of expression have 
 been used to characterize the animus manendi, the one most 
 frequently used being the word " permanent ; "^ and it has been 
 
 1 System, etc. §353 (Guthrie's trans. ' Bempde v. Johnstone, 3 Ves. Jr. 
 pp. 97, 98). 198 ; Munro v. Munro, 7 CI. & F. 842; 
 
 2 Liv. 1, c. 19, no. 218. Aiknian v. Aikman, 3 Macq. H. L. Cas. 
 8 Manuel, § 197. 864 ; Whicker v. Hume, 7 H. L. Cas. 
 
 234 
 
§ 166.] 
 
 CHANGE OP NATIONAL DOMICIL. [CHAP. VII. 
 
 found for practical purposes sufBciently explicit. "For an 
 unlimited time " 2 and " for an indefinite time " ^ have been 
 
 124; Dolphin D. Robins, id. 390j Moor- 
 house V. Lord, 10 id. 272 ; Pitt v. Pitt, i 
 Macq. H. L. Cas. 627; Bell v. Kennedy, 
 L. R. 1 Sch. App. 307 ; De Bonneval v. 
 De Bonneval, 1 Curteis, 866 ; Laneu- 
 ville V. Anderson, 2 Spinks, 41 ; Wilson 
 V. Wilson, L. K. 2 P. & D. 435 ; Brown 
 V. Smith, 15 Beav. 444 ; Jopp v. Wood 
 (M.R. ), 34 id. 88; Id. on appeal, 4 De G. 
 J. &S. 616; Lord i>. Colvin, 4 Drew, 366; 
 Haldane v. Eckford, L. E. 8 Eq. Cas. 
 631; Brunei «. Brunei, 12 id. 298; Doug- 
 las i). Douglas, id. 617; King v. Foxwell, 
 L. R. 3 Ch. D. 518 ; Doucet ii.Geoghegan, 
 9 id. 441 ; Capdevielle v. Capdevielle, 
 21 L. T. (n. s.) 650; Attorney-General i>. 
 Pottinger, 6 Hurl. & Nor. 733 ; Gillis 
 V. GiUis, Ir. R. 8 Eq. 697 ; see also in- 
 fra, note. In Munro v. Munro, Lord 
 Cottenham says : "To effect this aban- 
 donment of the domicil of origin and 
 substitute another in its place, it re- 
 quired le concours de la volenti et du 
 fait; animo et facto; that is, the choice 
 of a place ; actual residence in the place 
 then chosen ; and that it should be the 
 principal and permanent residence ; the 
 spot where he had placed ' larem rerum- 
 que ao fortunarum suarum summam ; ' 
 in fact, there must be both the residence 
 and intention. . . . Mr. Burge in his 
 excellent work cites many authorities 
 from the Civilians to establish this 
 proposition. It is not, he says, by pur- 
 chasing and occupying a house or fur- 
 nishing it, or vesting a part of his 
 capital there, nor by residence alone, 
 that domicil is acquired ; but it must 
 be residence with the intention that it 
 should be permanent." In Belli). Ken- 
 nedy, their lordships throughout speak 
 of permanent residence as necessary for 
 the change of domicil. Lord Chelms- 
 ford says: "This case being one of 
 alleged change of domicil, it is neces- 
 sary to bear in mind that a domicil, al- 
 though intended to be abandoned, will 
 continue until a new domicil is acquired, 
 and that a new is not acquired until 
 
 there is not only a fixed intention of 
 establishing a permanent residence in 
 some other country, but untU also this 
 intention has been carried out by actual 
 residence there. It may be conceded 
 that if the intention of permanently re- 
 siding in a place exists, a residence in 
 the pursuance of that intention, how- 
 ever short, will establish domicil." In 
 De Bonneval v. De Bonneval, Sir Her- 
 bert Jenner says : " Another principle 
 is that the acquisition of a domicil does 
 not simply depend upon the residence 
 of the party ; the fact of residence must 
 be accompanied by an intention of per- 
 manently residing in the new domicil, 
 and of abandoning the former." In 
 Brown v. Smith, Lord Langdale, M. E., 
 said ; "To constitute a new domicil in 
 a place there must not only be the fac- 
 tum of residence there, but the animus 
 manendi ; that is, there must be a fixed 
 resolution to have a permanent and con- 
 tinned residence in the place of actual 
 residence." James, V. C, in Haldane 
 V. Eckford, says that Udny v. Udny 
 brought " back the law to that which," 
 in his opinion, always was, before Moor- 
 house V. Lord and its sequeuts, " con- 
 sidered to have been the law, and evi- 
 dently is the law as laid down by the 
 treatise writers, viz., that domicil was 
 to be considered as changed whenever 
 there was a change of residence of a per- 
 manent character, voluntarily assumed." 
 A high English authority, the late Lord 
 Chief Justice Cockbum, in his work on 
 Nationality (p. 203), says : "Domicil 
 ... in legal phraseology, is neither more 
 nor less than a name for home, . . . the 
 establishing of which may be said to be 
 settling in a given locality with a present 
 intention of permanently abiding there." 
 See also Dicey, who generally uses the 
 word "permanent" to describe the ani- 
 mus manendi, although he also uses "in- 
 definite," e. g. Dom. pp. 73, 77, 80. 
 
 2 Udny V. Udny, L. R. 1 Sch. App. 
 441 ; Piatt v. Attorney-General, L. R. 
 
 » See infra, § 168, note 1. 
 
 235 
 
§ 166.] THE LAW OP DOMICIL. [CHAP. VII. 
 
 also used ; the latter in a few cases, and the former — through 
 the influence of Phillimore's definition (given above), and 
 more recently through the influence of Lord Westbury's 
 remarks in Udny v. Udny — in a number.* But it will be 
 found that both of these expressions have almost invariably 
 been used as equivalents of " permanently." 
 
 In the earlier English cases, not so much stress was laid 
 upon the character of the animus manendi as has been of late 
 years insisted upon. The decisions in the cases of the 
 Servants of the East India Company, if explained upon any 
 other ground than that given above,® are not in accordance 
 with the most approved definitions of domicil ; and as we have 
 already seen, the doctrine contained in them has been of late 
 repudiated. Kindersley, V. C, who appears to -have given a 
 great deal of attention to the subject of domicil, in Lord v. 
 Colvin,^ framed the following definition for the express pur- 
 pose of providing for them : " That place is properly the 
 domicil of a person in which he has voluntarily fixed the 
 habitation of himself and his family, not for a mere temporary 
 and special purpose, but with the present intention of making 
 it his permanent home, unless and until something (whicli 
 is unexpected or the happening of which is uncertain) shall 
 occur to induce him to adopt some other permanent home." 
 If the word " improbable " were substituted for the word 
 " uncertain," we should here have as accurate a definition of 
 domicil of choice, at least so far as concerns the animus 
 manendi, as it is probably possible to frame. 
 
 But the definition as given was disapproved by Lord Chelms- 
 ford in the same case on appeal in the House of Lords.'^ It 
 was there argued by appellants' counsel that intention to 
 remain for an indefinite time was sufiicient ; but this doctrine 
 was expressly repudiated, Lord Chelmsford remarking : " The 
 learned counsel for the appellants contended for a definition 
 of domicil far less precise and exact than any which has ever 
 been suggested. They argued that a domicil was acquired 
 
 3 App. Cas. 336 ; King v. Foxwell, * Infra, § 167. 
 L. E. 3 Ch. D. 618 ; Wilson v. Wilson, ' Supra, § 155. 
 L. R. 2 P. & D. 435; Attorney- General « 4 Drew. 366. 
 V. Kent, 1 Hurl. & Colt. 12 ; At&rney- 7 Sub nom. Moorhouse v. Lord, 10 
 
 General v. Howe, id. 31. H. L. Cas. 272, 285. 
 236 
 
§ 167.] CHANGE OP NATIONAL DOMICIL. [CHAP. Til. 
 
 whenever a person went to reside in a place for an indefinite 
 time.^ Now, this definition and that of the Vice-Chancellor 
 appear to me to be liable to exception in omitting one impor- 
 tant element ; namely, a fixed intention of abandoning one 
 domicil and permanently adopting another. The present 
 intention of making a place a person's permanent home can 
 exist only where he has no other idea than to continue there 
 without looking forward to any event, certain or uncertain, 
 which might induce him to change his residence. If he has 
 in contemplation some event, upon the happening of which 
 his residence will cease, it is not correct to call this even a 
 present intention of making it a permanent home. It is 
 rather a present intention of making it a temporary home, 
 though for a period indefinite and contingent. And even if 
 such residence should continue for years, the same intention 
 to terminate it being continually present to the mind, there is 
 no moment of time at which it can be predicated that there 
 has been a deliberate choice of a permanent home." 
 
 § 167. Id. id. — These expressions and others in the same 
 case and in the case of Whicker v. Hume ^ (decided by the 
 House of Lords a few years before), in which Lord Wensley- 
 dale said : " One very good definition is this, ' Habitation in a 
 place with the intention of remaining there forever, unless 
 some circumstance should occur to alter his intention,' " as 
 well as sevei'al decisions shortly afterwards made by the Court 
 of Exchequer, seem to go to the full length of Vattel's defi- 
 nition ; but in the latest cases there has been some recession 
 from that extreme doctrine. 
 
 In Udny v. Udny, Lord Chancellor Hatherley says that the 
 word " settling," ^ as we speak of a colonist " settling " in 
 Australia or Canada, more nearly describes the act which a 
 man does in adopting a domicil of choice than any other 
 word in our language. Lord Westbury in the same case says : 
 
 ? This position was based upon the in Bell v. Kennedy, L. R. 1 Sch. App. 
 
 expression of Bramwell, B., in Attor- 307 ; Douglas v. Douglas, L. E. 12 Eq. 
 
 ney-General v. Pottinger. See infra, Cas. 617 ; Gillis v. Gillis, Ir. R. 8 
 
 § 168, note 1. Eq. 597, and the passage quoted from 
 
 1 7 H. L. Cas. 124. Cockburn on Nationality, sitpra, § 166, 
 
 2 See also Lord Chancellor Cairns note 1 ; also Dicey, Dom. passim. 
 
 237 
 
§ 168.] 
 
 THE LAW OP DOMICIL. 
 
 [CHAP. VII. 
 
 "Domicil of choice is a conclusion or inference which the 
 law draws from the fact of a man fixing his sole or chief 
 residence in a particular place, with an intention to reside 
 there for an unlimited time ; ... it must be residence, fixed 
 not for a limited period or particular purpose, but general and 
 indefinite in its future contemplation." And this is now gen- 
 erally acquiesced in as an accurate statement of the British 
 doctrine upon the subject. 
 
 § 168. Id. id. Intention to remain " for an Indefinite Time." — 
 The phrase "indefinite time," so common in the American 
 cases, is rarely used in the English, and then (except in Moor- 
 house V. Lord, where the idea is expressly repudiated, and in 
 several cases by Bramwell, B., and Brett, L. J.) only as 
 equivalent to unlimited time ; ^ the sense in which it is used 
 
 1 Bramwell, B., in Steer's Case (3 
 Hurl. & Nor. 594, 599), used language 
 open to the construction that the ani- 
 mus inanendi necessary for a change of 
 national domicil is intention to remain 
 "during life." In Attorney-General v. 
 Pottinger, 6 id. 733, 748, in attempt- 
 ing to correct his former expression, he 
 said : " I can easily understand that Sir 
 Henry Pottinger contemplated the pos- 
 sibility of his being again employed in 
 India ; but that is immaterial. He 
 intended to reside here where he had 
 taken up his residence permanently, or 
 (as I should perhaps say with the 
 Attorney-General, as being a more cor- 
 rect expression than that which I used 
 in Steer's case) for an indefinite time." 
 Subsequently, during argument in At- 
 torney-General V. Eowe, 1 Hurl. & Colt. 
 31, his expression in Attorney-General 
 V. Pottinger having been urged by coun- 
 sel as authority for rejecting the word 
 " permanent " in describing the anirmts 
 manendi, and substituting " for an in- 
 definite time," he said : "I do not 
 think the term ' permanent ' is ' incor- 
 rect,' except that it is ambiguous. It 
 may mean ' forever ' or for ' an endur- 
 ing time.' " If the learned Baron is cor- 
 rectly reported, he seems to have been 
 hardly more fortunate this time than 
 before. Probably what he meant to 
 
 238 
 
 say was that the required animiLS ma- 
 nendi need not exclude the possibility 
 of future change. Indeed, this he ex- 
 pressly said in Attorney-General v. Pot- 
 tinger (see su'pra, § 166, note 2). Bat 
 that he did not hold the view that in- 
 tention to remain " for an indefinite 
 time" (as that expression has some- 
 times been used in this country) is 
 sufficient, is clear from the result of 
 Attorney-General v. Eowe. In that 
 case the person whose domicil was in 
 question had been appointed Chief Jus- 
 tice of Ceylon during the pleasure of 
 the Crown, and had resided in that 
 island in the discharge of his official 
 duties for several years, and died there. 
 Upon these facts the Court of Excheq- 
 uer, Bramwell, B., concurring, decided 
 that his English domicU of origin con- 
 tinued. The other judges who took 
 part in the decision of the case. Pol- 
 lock, C. B., and WUde, B., speak of 
 intention to remain permanently as the 
 necessary animiLS maneindi. Bramwell, 
 B., adds still further to the uncertainty 
 of his views by using the following lan- 
 guage : " [Counsel for defendant] relied 
 on the definition in Phillimore on Dom- 
 icil, founded on the dicta of American 
 judges, — 'a residence at a particular 
 place, accompanied by positive or pre- 
 sumptive proof of an intention to con- 
 
§ 169.] CHANGE OP NATIONAL DOMICIL. [CHAP. VII. 
 
 in the American municipal domicil, and a few other cases, 
 being expressed by Lord Wen sley dale in Aikman v. Aikman,^ 
 as " residence for a definite time, though of uncertain dura- 
 tion." " And this," he adds, " would not, I conceive, confer 
 a domicil." 
 
 §169. Id. id. Intention to remain during the Life of Another. — 
 Whether intention to remain during the life of another per- 
 son is a suiScient animus manendi for the constitution of a 
 domicil of choice, is not settled. In Anderson v. Laneuville,^ 
 decided by the Privy Council, the affirmative was held under 
 the following circumstances : A., whose domicil of origin was 
 Irish, at the age of nineteen, being in Prance for his education, 
 formed an attachment for L., who saved his life during the 
 French Revolution and procured his escape to England. 
 Forty years afterwards, having in the mean time acquired 
 an English domicil, he ascertained the whereabouts of L., and 
 joined her in France and lived there with her for thirteen 
 years, until his death, in a house which he bought jointly with 
 her. There was evidence that he had repeatedly declared his 
 intention of returning to England in case L. predeceased 
 him, and on the other hand his intention of remaining in 
 France as long as she lived was clear. Dr. Lushington, 
 speaking for the Privy Council, said : " It was contended that 
 the testator only intended to remain during Madame Laneu- 
 ville's lifetime. Assuming that to be the fact, assuming that 
 he intended to quit when Madame Laneuville died, it does not 
 at all follow that that will establish the conclusion that he had 
 not acquired a domicil in France ; because what is it that takes 
 off the acquisition of a domicil by long residence in a country ? 
 
 tinue there for an unlimited time.' If turning, that will not prevent his ac- 
 that means an endless time, it is quiring a domicil.' Such definitions 
 scarcely an accurate expression ; if it seem to me to arise from a vague notion 
 means a residence without any actual of the term 'domicil.'" See the Ian- 
 time assigned to it, it is probably more guage of Brett, L. J. , in Douoet v. 
 accurate. Another expression relied on Geoghegan, supra, § 155, note 8. See 
 is : 'an indefinite intention of remain- also the latter part of Lord Westbury's 
 ing;' the next is : 'a permanent set- " description of the circumstances which 
 tlement for an indefinite time,' or prob- constitute a domicil of choice," supra. 
 ably it might be more correct to say, " 3 Macq. H. L. Cas. 854. 
 ' an indefinite permanency.' With these i 9 Moore P. C. C. 325 ; s. c. 2 
 is coupled the expression : ' If a person Spinks, 41. 
 has a vague and floating intention of re- 
 
 239 
 
§ 170.J THE LAW OF DOMICIL. [CHAP. VII. 
 
 It is being there for a temporary purpose. It never can be 
 said that residing in a country till the death of a party was 
 a temporary purpose." 
 
 In Attorney-General v. Countess De Wahlstatt,^ the Court 
 of Exchequer took the opposite view. The testatrix, an un- 
 married woman, whose domicil of origin was English, had 
 for fourteen years resided with her sister, who was married 
 and domiciled at Baden-Baden, in Germany, and the evidence 
 was uncontradicted that it was her intention to remain with 
 her sister as long as the latter lived. In the view which the 
 court took of the facts, the intention of the testatrix beyond 
 the life of her sister was not clearly shown, if indeed any had 
 been definitely formed. Upon these facts the domicil of origin 
 of the testatrix was held to continue. It must be remarked, 
 however, that this was one of " the intermediate cases " be- 
 tween Moorhouse v. Lord and Udny v. Udny, whose author- 
 ity has been considerably shaken by the latter case and its 
 sequents. 
 
 But whether Anderson v. Laneuville or Attorney-General 
 V. Countess De Wahlstatt express the better doctrine, or 
 whether they may be reconciled, it is clearly impossible to 
 lay down a strict rule that intention to remain for the life 
 of another is or is not a sufficient animus manendi. In each 
 of the cases referred to, the person whose domicil was in ques- 
 tion, and the cestui que vie were of about the same age. Sup- 
 pose, however, that the expectation of life of the former had 
 been greatly in excess of that of the latter, or the reverse. If a 
 young and vigorous person go to reside with one who is old and 
 feeble, intending to remain during the lifetime of the latter, 
 and to return upon his death, would a change of domicil be 
 held ? Or take the converse, and suppose that an aged and 
 infirm parent should follow a young and vigorous child to 
 a new country, intending to end his days with him if possible, 
 but without any intention of remaining in case his child should 
 die first ; would not, in such a case, a residence sufficiently 
 permanent to constitute domicil be contemplated ? 
 
 § 170. Id. American Authorities. — In America there has 
 been considerable conflict of opinion, and certainly much 
 
 2 3 Hurl. & Colt. 374. 
 240 
 
§ 170.] CHANGE OF NATIONAL DOMICIL. [CHAP. VII. 
 
 looseness of expression, with respect to the requisite animus 
 manendi. This has been due to several causes, the principal 
 of which have been: (1) the application of "the doctrine of 
 domicil to a large variety of frequently very diverse subjects ; 
 (2) the legislative habit of using such words as " residence," 
 " inhabitancy," and the like as approximate terms to describe 
 connection between person and place, leaving to the courts 
 the duty of determining their true meaning in accordance with 
 the general tenor, object, and scope of the particular legisla- 
 tion in which they are used ; and (3) the too frequent prac- 
 tice of relying upon cases of municipal domicil as authorities 
 in cases of national and g'Masi-uational domicil. 
 
 In most of the cases, however, in which the subject is at all 
 considered, intention to remsdn permanentli/ is either laid down 
 or assumed as the necessary animus manendi.^ In many it is 
 strongly insisted upon, some cases even going to the extent of 
 adopting Vattel's definition either in terms or in substance. 
 
 President Rush, in the leading case of Guier v. O'Daniel,^ 
 defines domicil to be " residence at a particular place accom- 
 panied with positive or presumptive proof of continuing it an 
 unlimited time;" and through the influence of this definition, 
 particularly in its modified form as given by Phillimore, in- 
 tention to remain " for an unlimited time " has been adopted 
 in a number of the American cases .^ 
 
 1 The Venus, 8 Cranch, 253; Ennis Brewst. 439 ; Lindsay v. Murphy, 76 
 
 V. Smith, 14 How. 400; The Ann Green, Va. 428 ; Home v. Home, 9 Ired. 99 ; 
 
 1 Gall. 274 ; Catlin v. Gladding, 4 Ma- Plummer v. Brandon, 5 Ired. Eq. 190 ; 
 son, 308 ; Burnham v. Rangeley, 1 Eue High, Appellant, 2 Doug. (Mich.) 
 Woodb. & M. 7 ; Butler v. Farasworth, 515 ; Campbell v. "White, 22 Mich. 178; 
 
 4 Wash. C. Ct. 101 ; Castor v. Mitchell, Hayes v. Hayes, 74 111. 312 ; Dale v. Ir- 
 id. 191 ; Butler v. Hopper, 1 id. 499 ; win, 78 id. 160 ; Johnson d. Turner, 29 
 Read v. Bertrand, 4 id. 514; Prentiss v. Ark. 280; Gravillon v. Richards Ex'r, 13 
 Barton, 1 Brock. 389 ; Kemna v. Brock- La. An. 293 ; Heirs of HoUiman v. Fee- 
 haus, 10 Bias. 128 ; Johnson v. Twenty- hies, 1 Tex. 673; and see vii/ra, § 173, 
 one Bales, 2 Paine, 601; s. c. Van Ness, note 4. See also remarks of Butler, P. J., 
 
 5 ; United States v. Penelope, 2 Pet. Ad. in Se Lower Oxford Election, 11 Phila. 
 438 ; Sears v. Boston, 1 Met. 250 ; Du- 641. 
 
 puyo.Wurtz, 53N.Y. 556; iJe Catharine a 1 Binney, 349, note. 
 
 Eoberts' Will, 8 Paige Ch. 519 ; Craw- 8 Mitchell v. United States, 21 Wall, 
 
 ford V. Wilson, 4 Barb. 504 ; Vischer v. 350 ; White v. Brown, 1 Wall. Jr. 0. 
 
 Vischer, 12 id. 640 ; State v. Ross, 3 Ct. 217 ; Littlefield v. Brooks, 50 Me. 
 
 Zab. 517 ; Clark & Mitchener v. Likeiis, 475 ; Stockton v. Staples, 66 id. 197 ; 
 
 2 Dutch. 207 ; Taylor 0. Reading, 4 Crawford v. Wilson, 4 Barb. 504 ; Hege- 
 
 16 241 
 
§ 171.J 
 
 THE LAW OP DOMICIL. 
 
 [chap. VII. 
 
 § 171. Id. id. Intention to remain for an Indefinite Time. — 
 In many of the cases intention to remain " for an indefinite 
 time " 1 has been considered as sufficient. This phrase was 
 originally used doubtless as synonymous with "unlimited 
 time," ^ but through the influence of the cases of municipal 
 
 man ■». Fox, 31 id. 475 ; Long v. Ryan, 
 30 Gratt. 718 ; Dow v. Gould, 31 Cal. 
 629 ; and see Miller's Estate, 3 Rawle, 
 312 (a case of reverter). 
 
 1 The Venus, supra, per Washing- 
 ton, J. ; Ennis v. Smith, supra, ; White 
 V. Brown, supra; Earris v. Firth, i 
 Cranch C. Ct. 710 ; Jennison v. Hap- 
 good, 10 Pick. 77 ; Sleeper v. Paige, 
 15 Gray, 349 ; McCounell i>. Kelley, 
 138 Mass. 372 ; Hegeman v. Fox, su- 
 pra; Venable v. Paulding, 19 Minn. 
 488 ; Johnson v. Turner, 29 Ark. 280 ; 
 and see § 159, note 2, supra, and the 
 remaining notes to this section. 
 
 2 The Venus, supra ; Ennis v. Smith, 
 supra; White v. Brown, supra; Mc- 
 Connell v. Kelley, supra ; Hegeman v. 
 Fox, supra. In The Venus, Washing- 
 ton, J., says: "The writers upon the 
 law of nations distinguish hetween » 
 temporary residence in a foreign coun- 
 try for a special purpose, and a resi- 
 dence accompanied with an intention to 
 make it a permanent place of abode. 
 The latter is styled by Vattel, ' domicil,' 
 which he defines to be, ' a habitation 
 fixed in any place, with an intention of 
 always staying there.' Such a person, 
 says this author, becomes a member of 
 the new society, at least as a permanent 
 inhabitant, and is a kind of citizen of 
 an inferior order from the native citi- 
 zens ; but is, nevertheless, united and 
 subject to the society, without partici- 
 pating in all its advantages. This right 
 of domicil, he continues, is not estab- 
 lished unless the person makes suffi- 
 ciently known his intention of fixing 
 there, either tacitly or by an express 
 declaration. Vatt. pp. 92, 93. Gro- 
 tius nowhere uses the word ' domicil, ' 
 but he also distinguishes between those 
 who stay in a foreign country by the 
 necessity of their affairs, or from any 
 other temporary cause, and those who 
 
 242 
 
 reside there from a permanent cause. 
 The former he denominates ' strangers ' 
 and the latter ' subjects ; ' and it will 
 presently be seen, by a reference to 
 the same author, what different conse- 
 quences these two characters draw after 
 them. ... In deciding whether a per- 
 son has obtained the right of an ac- 
 quired domicil, it is not to be expected 
 that much, if any, assistance should be 
 derived from mere elementary writers 
 on the law of nations. They can only 
 lay down the general principles of law ; 
 and it becomes the duty of courts to 
 establish rules for the proper applica- 
 tion of those principles. The question 
 whether the person to be affected by the 
 right of domicil had sufficiently made 
 known his intention of fixing himself 
 permanently in the foreign country, 
 must depend upon all the circumstances' 
 of the case. If he had made no express 
 declaration on the subject, and his secret 
 intention is to be discovered, his acts 
 must be attended to, as affording the 
 most satisfactory evidence of his inten- 
 tion. On this ground it is that the 
 courts of England have decided, that a 
 person who removes to a foreign coun- 
 try, settles himself there, and engages 
 in the trade of the countiy, furnishes, 
 by these acts, such evidence of an in- 
 tention permanently to reside there, as 
 to stamp him with the national charac- 
 ter of the State where he resides. In 
 questions on this subject, the chief 
 point to be considered is the animus 
 manendi ; and courts are to devise such 
 reasonable rules of evidence as may es- 
 tablish the fact of intention. If it suf- 
 ficiently appear that the intention of 
 removing was to make a permanent set- 
 tlement, or for an indefinite time, the 
 right of domicil is acquired by a resi- 
 dence of a few days. This is one of 
 the rules of the British courts, and it 
 
§ 171.] 
 
 CHANGE OP NATIONAL DOMICIL. [CHAP. VII. 
 
 domicil has sometimes received a much different construction. 
 It is unfortunate that the word " indefinite " has been used at 
 all in this connection, as it is at best a vague term, and may 
 mean much or little, as happens.^ For in a certain sense in- 
 tention to remain for life is but intention to remain for an 
 indefinite time, while in another sense residence for the 
 merest temporary purpose may be residence for an indefinite 
 time. Thus intention to remain during the building of a 
 house, — though it took but twenty-nine days,* — or from 
 spring to the fall or winter of the same year, until M. (a tin- 
 pedler) could no longer travel on wheels,^ has been held 
 to fall within the meaning of the phrase, and to work a change 
 of municipal domicil. From such cases this doctrine has crept 
 into cases of g'wasi-national domicil. Thus, in Sleeper v. Paige,® 
 
 appears to be perfectly reasonable." In 
 the same case, Marshall, C. J., in a 
 dissenting opinion, remarks : " A dom- 
 icil, then, in the sense in which this 
 term is used by Vatjel, requires not 
 only actual residence in a foreign coun- 
 try, but ' an intention of always stay- 
 ing there.' Actual residence, without 
 this intention, amounts to no more than 
 'simple habitation.' Although this in- 
 tention may be Implied without being 
 expressed, it ought not, I think, to be 
 implied, to the injury of the individual, 
 from acts entirely equivocal. If the 
 stranger has not the power of making 
 his residence perpetual ; if circum- 
 stances, after his arrival in a country, so 
 change as to make his continuance 
 there disadvantageous to himself, and 
 his power to continue doubtful, — ' an 
 intention always to stay there' ought 
 not, I think, to be fixed upon him, in 
 consequence of an unexplained resi- 
 dence previous to that change of cir- 
 cumstances. Mere residence, under 
 particular circumstances, would seem 
 to me, at most, to prove only an inten- 
 tion to remain so long as those circum- 
 stances continue the same, or equally 
 advantageous. This does not give a 
 domicil. The intention which gives a 
 domicil is an unconditional intention 
 ' to stay always.' . . . Let it be remem- 
 
 bered that, according to the law of na- 
 tions, domicil depends on the intention 
 to reside permanently in the country to 
 which the individual has removed ; and 
 that a change of this intention is, at 
 any time, allowable." In Ennis v. 
 Smith, Wayne, J., says : " It is diffi- 
 cult to lay down any rule under which 
 every instance of residence could be 
 brought, which may make a domicil of 
 choice. But there must be, to consti- 
 tute it, actual residence in the place, 
 with the intention that it is to be the 
 principal and permanent residence. . . . 
 The removal which does not contemplate 
 an absence from the former domicil for 
 an indefinite and uncertain time is not 
 a change of it." And many other ex- 
 amples might be given. 
 
 8 Possibly a distinction may be taken 
 between "intention to remain for an 
 indefinite time "and "intention tore- 
 main indefinitely. " In Concord v. Rum- 
 ney, 45 N. H. 423, Bell, C. J., defines 
 the latter phrase as "a general inten- 
 tion to remain with no definite purpose 
 to remove elsewhere." 
 
 * Jamaica v. Townshend, 19 Vt. 267. 
 
 ' Mead». Boxborough, 11 Cush. 362. 
 
 « 15 Gray, 349. The facts of this 
 case are not fully reported, but it ap- 
 pears that the defendant had left Mas- 
 sachusetts, taking with him his family, 
 
 243 
 
§ 171.] 
 
 THE LAW OF DOMICIL. 
 
 [chap. TII. 
 
 a Massachusetts case, we find it laid down, " If his residence 
 out of the Commonwealth was but temporary, yet if the time 
 of his proposed return was indefinite, he retained no domicil 
 in the Commonwealth;" and to the like effect are several other 
 cases.'' It is obvious that these cases are in utter conflict 
 with all the foreign authorities, British and Continental, as 
 well as the best-considered American decisions ; and if followed 
 in cases involving questions of private international law, can 
 only introduce confusion by wholly breaking down the dis- 
 tinction between domicil and temporary residence. Who, 
 for instance, would seriously think of submitting to such a 
 test questions of testamentary capacity, personal succession, 
 
 and' retaining no dwelling-house or 
 boarding-place in that State, tut in- 
 tending to return. The question was 
 whether the time of his absence should 
 be reckoned as a part of the time for the 
 running of the statute of limitations.. 
 The court below substantially ruled that 
 it should ; and the Supreme Court, in 
 reversing, used the language above 
 quoted. In .seeking for an explanation 
 of this decision the learned editor of the 
 Eighth Edition of Story on the Conflict 
 of Laws holds (p. 60) that, although the 
 court uses the term " domicil," the case is 
 not one of domicil at all, but of residence 
 less than domicil, and that the- latter 
 term is not used in its techuical sense. 
 However this may be, it is to be hoped 
 that this case may never pass for an 
 authority on domicil in the usual sense 
 of that term. 
 
 ' Holmes v. Greene, 7 Gray, 299 ; 
 Venable v. Paulding, 19 Minn. 488 ; 
 Graham v. Trimmer, 6 Kans. 230. See 
 also Hallet v. Bassett, 100 Mass. 167. 
 Holmes v. Greene was a singular case, 
 and calls for some notice. The plain- 
 tiif, who was domiciled at Fall Kiver, 
 Mass., having been obliged to give up 
 his house in that place, and being un- 
 able to secure another there, removed 
 with his family across the State line to 
 Tiverton, Rhode Island, giving notice 
 at the time to the selectmen of both 
 Fall River and Tiverton, that his re- 
 moval was only for a temporary purpose, 
 
 244 
 
 and that he intended returning to the 
 former place. Thirteen months after- 
 wards he did return to Fall River with 
 his family, his office and place of busi- 
 ness having continued there all the 
 while. While living in Rhode Island 
 he requested the restoration of his name 
 to the list of voters of Fall River, it 
 having been stricken off, and, upon the 
 refusal of the selectmen to comply with 
 his request, he brought suit against 
 them for damages. It would seem upon 
 these facts that there never was a clearer 
 case of retention of domicil. Neverthe- 
 less, the court held the contrary, and 
 in so doing used this language : " It is 
 true that in cases where the domicil of 
 a party is in issue, evidence of his intent 
 may have an important and decisive 
 bearing on the question, but it must be 
 in connection with other facts, to which 
 the intent of the party gives efficacy and 
 significance. . . . But no case can be 
 found where the domicil of a party has 
 been made to depend on a bald intent, 
 unaided by other proof. The faetum 
 and the animus must concur in order 
 to establish a domicil. The latter may 
 be inferred from proof of the former. 
 But evidence of a mere intent cannot 
 establish the fact of domicil." In strik- 
 ing contrast with this case is the deci- 
 sion of the House of Lords in Maxwell 
 V. McClure, see supra, § 160, note 6. 
 That domicil may be retained by intent 
 alone, see supra, § 126. 
 
§ 173.] CHANGE OP NATIONAL DOMICIL. [CHAP. Til. 
 
 capacity for legitimation per auhsequens matrimonium, or the 
 like ? 
 
 But in the face of such loose views, it is not surprising to 
 find several Maine judges^ carrying them to their logical 
 conclusion by suggesting that the true test is simply intention 
 to remain, whether for a definite or an indefinite time, and 
 that therefore residence, accompanied with intention to remain 
 for a term of years, would work a change of g'Masi-national 
 domicil. 
 
 § 172. Id. id. id. — Much of the confusion on this subject 
 in the American cases is traceable, directly or indirectly, to 
 misconception of the meaning of Story's oft-quoted passage, 
 given above.^ But that that illustrious jurist did not use the 
 phrase " indefinite time " in the sense of mere uncertainty of 
 duration, is plain from the language which he uses throughout 
 the chapter on domicil in his work on " The Conflict of Laws," 
 and particularly from his definition of domicil (following Dr. 
 Lieber) as a " true, fixed, and permanent home," ^ as well as 
 from the language which he used on the bench.^ 
 
 § 173. Id. Intention to make the New Place the Home of the 
 Party. — ■ Story says : ^ " Two things then must concur to con- 
 stitute domicil : first, residence ; and secondly, the intention 
 of making it the home of the party." And a large number of 
 authorities, British and American,^ have followed him either 
 
 ' Davis, J., in Oilman v. Oilman, are not strictly within the terms of any 
 
 52 Me. 165, 173, says : " If a citizen of definition that has been given ; and yet 
 
 Maine, with his family, or having no it can hardly be doubted that they 
 
 family, should go to California to en- would be held to establish a domicil." 
 
 gage in business there with the inten- See also Kent, J. , in Church v. Rowell, 
 
 tion of returning at some future time, 49 Me. 369, and Oraham v. Trimmer, 
 
 definite or indefinite, and should estab- supra. 
 
 lish himself there in trade or agricul- ^ Supra, § 154 ; Story, Confl. of L. 
 
 ture, it is difficult to see upon what § 46. 
 
 principle his domicil could be said still ^ Confl. of L. § 41. 
 
 to be here. His residence there, unth ' See, e. g.. The Ann Green, 1 Gall. 
 
 the intention of remaining there a term 274 ; Catlin ». Gladding, 4 Mason, 308. 
 
 of years, might so connect him with all i Confl. of L. § 44. 
 
 the interests and institutions, social and 2 Whicker v. Hume, 7 H. L. Cas. 
 
 public, of the community around him 124 ; Moorhouse v. Lord, 10 id. 272 ; 
 
 as to render it not only proper, but im- Jopp v. Wood, 34 Beav. 88, affirmed 4 
 
 portaut for him to assume the responsi- De 0. J. & S. 616; Doucet v. Geoghegan, 
 
 bilities of citizenship, with all its priv- L. R. 9 Ch. D. 441 ; Lord v. Colvin, 
 
 ileges and its burdens. Such residences 4 Drew. 366 ; Douglas v. Douglas, L. E. 
 
 245 
 
§ 174.J 
 
 THE LAW OF DOMICIL. 
 
 [CHAP. 
 
 VII. 
 
 in words or in substance. " Home " itself, when properly 
 understood, suggests the idea of permanency,^ although, as the 
 word has been frequently loosely used, some authorities, to 
 prevent misconception, speak of " permanent home " * as the 
 thing a person must intend to set up in acquiring a domicil 
 of choice. Thus Lord Cranworth says, in Whicker v. Hume : 
 " By domicil we mean home, the permanent home ; and if you 
 do not understand your permanent home, I am afraid that no 
 illustration drawn from foreign writers or foreign languages 
 will very much help you to it." Wickens, V. C, in Douglas 
 V. Douglas, says : " It seems to me . . . that the intention 
 required for a change of domicil, as distinguished from the 
 action embodying it, is an intention to- settle in a new country 
 as a permanent home." And Story himself, as we have seen, 
 defines domicil as a " true, fixed, permanent home, etc." ^ 
 
 § 174. Id. Negative View of Animus Manendi, — ■without 
 Stay Present Intention of Removing. — A negative view of the 
 
 12 Eq. Cas. 617 ; White v. Brown, 1 
 Wall. Jr. C. Ct. 217; Hart v. Lindsey, 
 17 N. H. 235; WOson v. Terry, 11 
 Allen, 206 ; Perkins v. Davis, 109 Mass. 
 239 ; Dupuy v. Wurtz, 53 N. Y. 656 ; 
 Chaine v. Wilson, 1 Bosw. 673 ; Fry's 
 Election Case, 71 Pa. St. 302 ; Carey's 
 Appeal, 75 id. 201 ; Home v. Home, 
 9 Ired. 99 ; Smith v. Croom, 7 Fla. 81 ; 
 Hiestand v. Kuns, 8 Blackf. 345 ; Mc- 
 Clerry v. Matson, 2 Ind. 250 ; MeCol- 
 lum V. White, 23 id. 43 ; Eue High, 
 Appellant, 2 Doug. (Mioh. ) 515 ; State 
 V. Dodge, 56 Wis. 79 ; Hayes v. Hayes, 
 74 111. 312 ; State v. Miunick, 15 Iowa, 
 123 ; Foster v. Eaton & Hall, 4 Humph. 
 346 ; Allen v. Thomason, 11 id. 536 ; 
 Pearce v. State, 1 Sneed, 63 ; White 
 V. White, 8 Head, 404 ; Kellar v. Baird, 
 5 Heisk. 39 ; Hairstou v. Hairston, 27 
 Miss. 704 ; Melntyre v. Chappel, 4 Tex. 
 187 ; Hardy v. DeLeon, 5 id. 211. 
 
 " In Doucet v. Geoghegan, supra, 
 Jessel, M. E., says : " In all cases a 
 difficulty arises as to the meaning of the 
 word ' domicil ; ' but it evidently im- 
 plies the intention to make the place 
 one's home, and a home itself is sugges- 
 tive of permanency." See also remarks 
 
 246 
 
 of Du Pont, J., in Smith v. Croom, 
 supra. 
 
 * In addition to the English cases 
 cited in note 2, Dupuy v. Wurtz, supra; 
 Fry's Election Case, supra ; Home v. 
 Home, supra; Hayes v. Hayes, supra; 
 Rue High, Appellant, supra ; Pearce 
 V. State, supra ; Hairston v. Hairston, 
 supra. See also Dicey, Dom. pp. 1, 
 3, 42 et seq., and Foote, Priv. Int. Jur. 
 p. 15. In Jopp V. Wood, supra. 
 Turner, L. J., says ; " The mere fact 
 of a man residing in a place different 
 from that in which he has been before 
 domiciled, even although his residence 
 there may be long and continuous, 
 does not of necessity show that he 
 has elected that place as his perma- 
 nent and abiding home. He may have 
 taken up and continued his residence 
 there for some special purpose, or he 
 may have elected to make the place 
 his temporary home. But domicil, al- 
 though in some of the cases spoken of 
 as a home, imports an abiding and 
 permanent home and not a mere tem- 
 porary one." 
 
 ^ Confl. of L. § 41 ; see s^lpra, 
 §65. 
 
§ 174.] CHANGE OF NATIONAL DOMICIL. [CHAP. VII. 
 
 animus manendi has sometimes been put. This has been ex- 
 pressed in the form of a definition, thus : " That place is prop- 
 erly the domicil of a person in which his habitation is fixed 
 without any present intention of removing therefrom." i That 
 this is inaccurate as a definition either of domicil in general 
 or of domicil of choice, could easily be shown. Indeed, it was 
 originally intended hardly as a formal definition, but rather as 
 a protest against, and an approximate correction of, the too 
 narrow definition of Vattel. Its author was Parker, J., who, 
 in Putnam v. Johnson, a case of municipal domicil, used the 
 following language : " The definition of domicil, as cited from 
 Vattel by the counsel for the defendants, is too strict, if taken 
 literally, to govern in a question of this sort ; and, if adopted 
 here, might deprive a large portion of the citizens of their 
 right of suffrage. He describes a person's domicil as the 
 habitation fixed in any place, with an intention of always 
 staying there. In this new and enterprising country it is 
 doubtful whether one half of the young men, at the time of 
 their emancipation, fix themselves in any town with an in- 
 tention of always staying there. They settle in a place by 
 way of experiment, to see whether it will suit their views of 
 business and advancement in life ; and with an intention of 
 removing to some more advantageous position if they should 
 be disappointed. Nevertheless, they have their home in their 
 chosen abode while they remain. Probably the meaning of 
 Vattel is, that the habitation fixed in any place, without any 
 present intention of removing therefrom, is the domicil. At 
 least, this definition is better suited to the circumstances of 
 this country." 
 
 But thus explained, however applicable to cases of muni- 
 cipal domicil, it is inapplicable to cases of national and quasi- 
 
 1 story, Confl. of L. § 43 ; Putnam 10 How. Pr. 477, which is, however, a 
 
 V. Johnson, 10 Mass. 488, 501 ; Oilman case of attachment, and consequently, 
 
 V. Oilman, 52 Me. 165 ; Ryal v. Ken- according to the view held by the New 
 
 nedy, 40 N. Y. Super. Ct. 347; Miller's York courts, not a case of domicil, but 
 
 Estate, 3 Eawle, 312; Carey's Appeal, ofresidence less than domicil. Itis, how- 
 
 75 Pa. St. 201 ; Hindman's Appeal, 85 ever, cited as an authority for this po- 
 
 id. 466 ; Pilson v. Bushong, 29 Oratt. sition in Eyal v. Kennedy, supra, a case 
 
 229 ; Rue High, Appellant, 2 Doug, of jurisdiction to grant administration, 
 
 (Mich.) 515 ; Hardy i». DeLeon, 5 Tex. and, therefore, clearly one of domicil. 
 211. See also Heideubach v. Schland, 
 
 247 
 
§ 174.] THE LAW OF DOMICIL. [CHAP. VII. 
 
 national domicil,^ — a tentative settlement or contingent 
 animus manendi, such as that referred to, being insufficient 
 for the acquisition of such domicil ; ^ and, a fortiori, the mere 
 absence of intention as to future residence would be insuffi- 
 cient. For the acquisition of domicil there must be animus 
 manendi of some description. It is possible that this is im- 
 plied in the words " habitation fixed." But what are we to 
 understand by these words ? Certainly not mere physical 
 presence ; there must be something more than that. Would 
 residence for a special and temporary purpose, there being no 
 am/imus revertendi, and no intention of any kind with regard 
 to the future, after the accomplishment of such purpose, be 
 sufficient ? Clearly not. For in such case, according to the 
 great weight of the authorities, the prior domicil would be 
 presumed to continue. Or do the words contemplate the 
 manner of living ? Probably not. It will be observed that 
 in all the cases of national or quasi-n&tional domicil in which 
 this negative description of the animus manendi has been 
 used, there has been evidence more or less strong of intention 
 to remain for an unlimited time.* 
 
 2 This is recognized, although some- Jixed in any place vnthout a present 
 what confusedly, in Stratton v. Brig- intention of removing therefrom." The 
 ham (2 Sneed, 420), where Totten, J., right of attachment, howeyer, if depen- 
 says ; "There is, no douht, a distinc- dent at all upon domicil, depends upon 
 tion between residence and domicil. national or quasi-imtional doniicU. 
 ' The domicil is the habitation fixed in " See infra, § 176. 
 any place with an intention of always * See particularly Kennedy v. Ryal, 
 staying there.' Vattel, 163. In this 67 N. Y. 379 (aflSrming Ryal v. Ken- 
 sense he who stops even for a long time nedy, supra). In that case the plaintiff 
 in a place, for the management of his immigrated from England to the City 
 affaii's, has only a simple habitation of New York, and after having worked ia 
 there, but has no domicil. Thus the that city for seven months was followed 
 ' envoy of a foreign prince has not his by his wife and two children. Upon 
 domicil at the court where he resides.' the trial he testified "that he came to 
 Vattel, 164. This is national domicil, New York for the purpose of making it 
 in the sense of the public law, by which his home and living there." This was 
 the national character of the person and stricken out on motion of defendant's 
 the right of succession to movable prop- counsel, and the suit dismissed upon the 
 erty are determined. But when used ground that, the plaintiff not being 
 in connection with subjects of domestie domiciled in New York, the Surrogate 
 policy, as taxation, settlement, voting, had no jurisdiction to issue to him let- 
 and the attachment law, the term ters of administration upon the estate 
 ' domicil ' has a more confined and re- of his infant child, for whose death, 
 stricted import, and implies the same as through the negligence of defendant, 
 residsTice : That is, the home or habitation damages were sought to be recovered 
 
 248 
 
§ 175.] 
 
 CHANGE OF NATIONAL UOMICIL. [CHAP. VII. 
 
 § 175. Id. Animus Manendi does not exclude the Possibility 
 of Change. — But whatever may be the nature of the requisite 
 animus manendi, it cannot be understood as excluding or even 
 restricting the possibility of future change.^ The power to 
 
 The General Term of the Superior Court 
 granted a new trial ; and lu affirming 
 this decision, Miller, J., speaking for 
 the Court of Appeals, said: "At the 
 time of the death of the child and for 
 seven months prior thereto, his father, 
 the plaintiff, was living there. He had 
 previously resided in England, and his 
 wife and the child came to join him and 
 to live with him in New York. He 
 testified that he came there for the pur- 
 pose of making a home and a living. 
 This evidence was erroneously stricken 
 out ; and as it was material upon the 
 question of residence, and as the action 
 can be maintained as already shown, 
 this error would entitle the plaintiff to 
 a new trial. But without regard to 
 this testimony, and independent of it, 
 the evidence upon the trial tends to 
 show that his domioE was in New 
 York. He had left or emigrated from 
 his own country, located, and was at 
 work in New York, thus showing an 
 intention to establish a residence there, 
 and so far as the evidence goes, evinced 
 no intention or determination to reside 
 anywhere else. Here was a prima fade 
 evidence that he was domiciled there, 
 and it was for those who claim other- 
 wise to rebut this evidence. If he had 
 not a domicil in New York, it would be 
 difficult to say how a domicil could be 
 proved where a person who had left his 
 own country had thus settled." In 
 Thomdike v. Boston (1 Met. 242), 
 Shaw, C. J., says : "If the plaintiff 
 had left Boston and actually taken up 
 a residence with his family in Scotland, 
 without any intention of returning, 
 thereby assuming that country as his 
 definite abode and place of residence, 
 until some new intention had been 
 formed or resolution taken, he had 
 ceased to be an inhabitant of Boston, 
 liable to taxation for his personal prop- 
 erty." But he also says in another 
 
 passage in the same case : " There was 
 evidence tending to show that when 
 the plaintiff removed with his family to 
 Edinburgh in 1836, he did it with the 
 intention of fixing his residence perma- 
 nently in Scotland." Hindman's Ap- 
 peal, supra, is probably an exception 
 to the statement in the text ; but upon 
 the facts as they appear in the report 
 and the opinion of the court, it is 
 doubtful whether that case was rightly 
 decided. 
 
 1 " The term permanent abode, how- 
 ever, excludes neither a temporary ab- 
 sence nor a future change, the reserva- 
 tion of which faculty is plainly impHed." 
 Savigny, System, etc. § 353 ; Guthrie's 
 trans, p. 97. "As a criterion, there- 
 fore, to ascertain domicil, another prin- 
 ciple is laid down by the authorities as 
 well as by practice, — it depends upon 
 the intention, upon the quo animo, — 
 that is the true basis and foundation 
 of domicil : it must be residence sirie 
 animo revertendi, in order to change the 
 domicilium originis ; a temporary resi- 
 dence for the purposes of health or 
 travel or business has not the effect ; it 
 must be a fixed and permanent resi- 
 dence, abandoning finally and forever 
 the domicil of origin, yet liable still to 
 a subsequent change of intention." Per 
 Sir John Nichol, Stanley v. Bernes, 3 
 Hagg. Eccl. 373. " If, in order to con- 
 stitute a domicil, there were required 
 an animus manendi so permanent and 
 so absolixte as to be independent of any 
 possible change of circumstances, I do 
 not understand how, in the constant 
 uncertainty and transition of sublunary 
 events, a domicil ever could be estab- 
 lished." Per Lord FuUerton, in Com- 
 missioners of Inland Revenue v. Gor- 
 don's Ex'rs, 12 D. (Sc. Sess. Cas. 1850), 
 657, 662. " Now, what is a permanent 
 abode ? Must it be an abode which the 
 party does not intend to abandon at 
 
 249 
 
§ 176.] THE LAW OP DOMICIL. [CHAP. Til. 
 
 change, being of the essence of domicil, is always reserved, 
 even if we adopt the strictest possible view of the animus 
 manendi. Domicil is not only freely chosen, but freely 
 changed, by one who is sui juris ; and even though he intend 
 to remain in a new place of abode always, or for life, he is at 
 liberty to change his intention and adopt another place as 
 circumstances may require or caprice suggest. It is, there- 
 fore, necessary in solving a question of change of domicil to 
 confine ourselves closely to the point of time at which the 
 change is alleged to have occurred, and to bear in mind that 
 subsequently formed intention is not only not determinative, 
 but is very frequently misleading.^ 
 
 § 176. Id. Contingent Animus Manendi not sufBcient. — A 
 mere conditional or contingent animus manendi is not suffi- 
 cient.^ Thus, where a citizen of Illinois went to Tennessee, 
 intending to settle there, if the country suited him, it was held 
 that he did not thereby gain a domicil in Tennessee.^ So in 
 the case of Bell v. Kennedy, in the House of Lords, B. left his 
 domicil of origin in Jamaica and went to Scotland, intending 
 to settle there permanently, if he could find an estate to suit 
 
 any future time ? This, it seems to us, Kiudersley, V. C, in Lord v. Colvin, 
 
 would be a definition too stringent for a supra, § 66. See also Butler, P. J., in 
 
 country whose people and characteris- Be Lower Oxford Election, 11 Phila. 
 
 tics are ever on a change. No man 641. 
 
 in active life in this State can say, ^ A conspicuous example is that of 
 wherever he may be placed, ' This is and Story himself, who was thus misled 
 ever shall be my permanent abode.' It by what appears to have been the sub- 
 would be safe to say a permanent abode, sequeutly formed " floating intention " 
 in the sense of the statute, means noth- of the testator in Stanley v. Bernes, 
 ing more than a domicil, a home which see swpra, § 155. 
 
 the party is at liberty to leave, as inter- ^ Bell v. Kennedy, L. E. 1 Sch. App. 
 
 est or whim may dictate, but without 307 ; Craigie v. Lewin, 3 Curteis, 435 ; 
 
 any present Intention to change it." Johnsons. Twenty-one Bales, 2 Paine, 
 
 Breese, J., in Dale v. Irwin, 78 111. 160, 601 ; s. c. Van Ness, 5 ; Eoss v. Ross, 
 
 181. So also the language of Marshall, 103 Mass. 575 ; Plummer v. Brandon, 
 
 C. J., in The Venus, mpra, § 171, 5 Ired. Eq. 190 ; Smith v. Dalton, 1 
 
 note 2. This possibility of future change Gin. S. C. Eep. 150; Smith «. People, 
 
 is provided for in the definition which 44 111. 16 ; Wilkins v. Marshall, 80 id. 
 
 Lord Wensleydale quotes with approval 74 ; Beardstown v. Virginia, 81 id. 541; 
 
 in Whicker v. Hume (7 H. L. Cas. 124, 'Williams v. Henderson, 18 La. Eep. 
 
 164): "Habitation in a place with the 557. See also Pfoutz v. Comford, 36 
 
 intention of remaining there forever. Pa. St. 420, and Eeed's Appeal, 71 id. 
 
 unless some circumstance should occur 378. 
 
 to alter his intention." It is also pro- ^ Smith d. People, mpra. 
 vided for in the definition fiumed by 
 
 250 
 
§ 177.J CHANGE OP NATIONAL DOMICIL. [CHAP. VII. 
 
 him ; in this he failed up to the time when his domicil became 
 important, and it was held that his domicil of origin con- 
 tinued, and this although he had no intention of returning to 
 it in any event. This point is also illustrated by the case of 
 Craigie v. Lewin, already referred to.^ 
 
 § 177. Id. Intention to reside presently necessary. — Again, 
 it is necessary that the intention should be to reside presently 
 as well as permanently?- Personal presence, coupled with in- 
 tention to begin in futuro a residence of however permanent 
 character, is not sufficient. Thus, in the case of Attorney- 
 General V. Dunn, an Englishman went abroad and purchased 
 the title, castle, and estate of R. in the Papal States, and ex- 
 pended a large sum of money in fitting up the castle for his 
 future permanent residence. He died in Rome while the 
 improvements were still going on, having in the mean time 
 returned to England, and spent much of his time in travelling. 
 The court held that, his intention having been only to take up 
 his residence at R. at a future time, his English domicil con- 
 tinued. So in Carey's Appeal, the testator, who had lived in 
 Pennsylvania upwards of forty years, but had subsequently 
 become domiciled in Rhode Island, stopped at Philadelphia 
 en route to the South, where he intended to spend the winter, 
 and while in Philadelphia expressed his intention to return 
 there to reside permanently, and directed his son-in-law to 
 look for a house for him in that city, to be taken on his return 
 from the South the next spring. But it was held that, as he 
 contemplated, not an immediate, but a future settlement in 
 Pennsylvania, his Rhode Island domicil remained. In Hall v. 
 Hall, it was held that one who came into the State of Wis- 
 consin and engaged a lodging-place, but without occupying it 
 left the same day, intending to return, and went into other 
 States to transact business, did not acquire a domicil in Wis- 
 consin until his subsequent return. 
 
 8 Supra, § 157. 199 ; Hall v. Hall, 25 Wis. 600. See 
 
 1 Attorney-General v. Dunn, 6 Mees. also authorities cited, supra, § 176, 
 
 & "W. 511 ; Amott v. Groom, 9 D. (Sc. note 1 ; and see apparently contra, Wil- 
 
 Sess. Cas. 2d ser. 1846) 142, per Lords Hams v. Koxbury, 12 Gray, 21, the facts 
 
 Wood and Fullerton ; Carey's Appeal, of which, however, as well as the man- 
 
 75 Pa. St. 201 ; Smith v. Groom, 7 ner in which the case arose, are peculiar. 
 
 Fla. 81 ; State v. Hallett, 8 Ala. 159 ; See also Chicago & N. W. Ey. Co. v. 
 
 Talmadge Adm'r v. Talmadge, 66 id. Ohle, 117 U. S. 123. 
 
 251 
 
§ 17T.J 
 
 THE LAW OP DOMICIL. 
 
 [chap. VII. 
 
 Whether a married man who has gone into another State 
 for the purpose of selecting and preparing a home for himself 
 and family, and who has actually selected and prepared 
 such home, thereby acquires a domicil, notwithstanding his 
 intention to return for the purpose of bringing his family ta 
 the new place of abode, is a question left in some doubt by 
 the apparent conflict of the decisions,^ although the weight of 
 authority appears to be in favor of the affirmative. 
 
 2 Compare State v. Hallett, supra, 
 and Talmadge's Adm'r v. Talmadge, 
 supra, with Bumham u. Eangeley, 1 
 Woodb. &M. 7; Swaney v. Hutchins, 
 13 Neb. 266 ; Johnson v. Turner, 29 
 Ark. 280 ; Republic v. Young, Dallam, 
 464 ; Kussell v. Eandolph, 11 Tex. 460. 
 State V. Hallett was a case of great 
 hardship. The defendant, a citizen of 
 Georgia, went to Alabama, declaring his 
 intention to settle in the latter State, if 
 he could procure a suitable site for an 
 iron foundry. He did procure such 
 site, and having set another person to 
 work to get out timber for building, he 
 returned to Georgia to bring his family. 
 Having been delayed there several 
 weeks, he got back to Alabama, Nov. 
 26, 1843, established his foundry, and 
 continued to reside there up to the time 
 the case was decided. He voted in 
 Alabama, Nov. 11, 1844, and for this 
 was convicted upon the ground that he 
 had not resided in the State one year. 
 His conviction was affirmed by a divided 
 supreme court, two judges to one hold- 
 ing that he did not acquire a domicil 
 until Nov. 26, 1843. In Talmadge's 
 Adm'r v. Talmadge, the facts were 
 that Talmadge, who was domiciled 
 in Illinois, came to Alabama and pur- 
 chased a tract of land, declaring at the 
 time of the purchase, and previously 
 and subsequently thereto, his intention 
 to bring his family from Illinois and 
 settle upon the tract so purchased. He 
 thereupon procured the services of a 
 workman to improve said property, 
 superintending the improvement him- 
 self, and stating that he intended to 
 occupy it for his home. Shortly after- 
 ward he returned to Illinois, declaring 
 
 252 
 
 at the time his purpose to bring his 
 family back with him to reside in Ala- 
 bama on said property. Upon reaching 
 Illinois he shipped a part of his goods 
 to a railroad station, en roide for Ala- 
 bama; but before he finished shipping 
 he died. While in Illinois, on his re- 
 turn from Alabama, he declared that he 
 was a citizen of the latter State. Upon 
 these facts it was held that he had not ac- 
 quired a domicil in Alabama. In Bum- 
 ham V. Eangeley, the defendant, whose 
 domicil was in question, had removed 
 the major part of his family from Maine 
 to Virginia at the time inquired about, 
 and had returned for the rest (his wife 
 and one daughter). His domicil was 
 held to have been changed. In Swaney 
 V. Hutchins, S. went to Nebraska in 
 May from Illinois, where he had previ- 
 ously resided, intending to reside per- 
 manently in Nebraska. He proceeded 
 to erect a house on land belonging to his 
 wife there, intending as soon as it was 
 completed to bring his family to reside 
 in it. The building was not completed 
 until October. In August he returned 
 to Illinois, in consequence of the sick- 
 ness of his wife, and in October brought 
 her and his family to Nebraska. In 
 June an attachment was issued against 
 him and his wife as non-residents. Held 
 that they were not non-residents, and 
 that attachment did not lie, the court 
 putting the case upon the ground of 
 domicil. In Johnson v. Turner, J., who 
 was domiciled in Mississippi, sold his 
 real estate there and went to Arkansas 
 in the fall of 1859, and purchased real 
 estate there ; his wife and children go- 
 ing to her mother's in Kentucky. He 
 cultivated his place in Arkansas, and in 
 
§ 179.] 
 
 CHANGE OF NATIONAL DOMICIL. [CHAP. VII. 
 
 § 178. Animus need not be Present at the Time of Removal ; 
 It may grow up afterwards. — It is not necessary, however, 
 that the animus should be present at the time of removal. It 
 may grow up afterwards, and engraft itself upon a residence, 
 originally taken for a special or temporary purpose, so as to 
 transmute it into domicil.1 In Udny v. Udny, Lord Westbury 
 said : " Residence originally temporary, or intended for a lim- 
 ited period, may afterwards become general and unlimited ; 
 and in such a case, so soon as the change of purpose, or 
 animus manendi, can be inferred, the fact of domicil is 
 established." 
 
 § 179. At 'what Point of Time Domicil vests and is divested. 
 — All that is necessary for the acquisition of a domicil of 
 choice is that the factum and the animus should at some time 
 coexist, — that absence from the old place of abode and pres- 
 ence in the new should concur with intention to abandon 
 the old and presently and permanently reside in the new. 
 And as the new domicil vests instantly upon the concur- 
 rence of the elements which are necessary for its acquisition,^ 
 
 the summer of 1860 went to Kentucky, 
 with the avowed intention of bringing 
 hack his wife and family with him. In 
 the fall of the same year he returned 
 without them, alleging, as the reason for 
 not bringing them, that his mother-iu- 
 law could not come and that his wife 
 had remained to be with her. In 1861 
 he again went to Kentucky, and made 
 his arrangements to bring back with 
 him his wife and family, but was pre- 
 vented from so doing by sickness, of 
 which he subsequently died. He paid 
 poll tax in Arkansas, had his land as- 
 sessed on the citizens' list, and fre- 
 quently declared his intention of resid- 
 ing permanently in Arkansas. Upon 
 these facts it was held that he had ac- 
 quired a domicU in Arkansas, and that 
 his family were entitled to homestead 
 under the laws of that State. In Rus- 
 sell V. Randolph, R. came to Texas 
 in 1834, and in August, 1835, obtained 
 a grant of land from the Republic. 
 Afterwards he left for the State of 
 Maine, where he had previously been 
 domiciled, for the purpose of bringing 
 
 out his family to settle upon the land 
 conceded to him, and soon after reach- 
 ing Maine he died. Held that he was 
 domiciled in Texas, and his family were 
 entitled to homestead under the laws of 
 that State. Republic v. Young was a 
 similar case. Brown v. Boulden, 18 
 Tex. 431 (municipal domicil), is appar- 
 ently in conflict with the other Texas 
 cases ; but it was decided rather to carry 
 out the spirit of a statute which seemed 
 to require a notorious place of abode. 
 
 1 Udny V. Udny, L. R. 1 Sob. App.' 
 441; Piatt v. Attorney-General, L. R. 
 3 App. Cas. 336; Haldane v. Eckford, 
 L. R. 8 Eq. Cas. 631; Brunei i). Brunei, 
 L. R. 12 Eq. Cas. 298 ; Hoskins ■». Mat- 
 thews, 8 De G. M. & G. 13 ; The Har- 
 mony, 2 C. Rob. 322 ; The Ann Green, 
 1 Gall. 274 ; Hampden v. Levant, 59 
 Me. 557; Carey's Appeal, 75 Pa. St. 201; 
 Colbum V. Holland, 14 Rich. Eq. 176 ; 
 Rue High, Appellant, 2 Doug. (Mich. ) 
 515 ; Pothier, Int. aux Cout. d'Orl&ns, 
 no. 15; Story, Confl. of L. § 45. 
 
 1 $upra, § 134. 
 
 253 
 
§ 179.] 
 
 THE LAW OP DOMICIL. 
 
 [chap. VII. 
 
 SO too the old domicil is instantly divested.^ This results 
 necessarily from the application of the principle that "no 
 person can have more than one domicil at the same time." 
 
 Whatever may be the mental processes of the person whose 
 domicil is in question, in law the loss of the old and the acqui- 
 sition of the new domicil are coincident as well as correlative. 
 The one depends upon the other, and they happen at the same 
 instant of time.^ 
 
 2 Opinion of the Judges, 5 Mete. 
 587; McDaniel v. King, 5 Gush. 469 ; 
 Brown v. Ashbough, 40 How. Pr. 260; 
 McDaniel's Case, 3 Pa. L. J. 315; State 
 V. Frest, 4 Harr. (Del.) 558 ; Rue High, 
 Appellant, 2 Doug. (Mich.) 515. In 
 McDaniel v. King, Shaw, C. J., said : 
 " The principle seems to be well settled 
 that every person must have a domicil, 
 and that he can have but one domicil 
 for one purpose at the same time. It 
 follows, of course, that he retains one 
 until he acquires another, and that by 
 acquiring another eo instanti and by that 
 act he loses his next previous one. " 
 
 ' Such, at least, is the result of the 
 British and American cases. This was 
 expressed, although somewhat confused- 
 ly, by Lord Alvanley, M. R., in Somer- 
 ville V. Somerville (5 Ves. Jr. 750) in 
 these words : " The domicil of origin 
 is to prevail until the party has not 
 only acquired another, but has mani- 
 fested and carried into execution an 
 intention of abandoning his former 
 domicil and taking another as his sole 
 domicil." It might seem that in the 
 opinion of his Honor the acquisition of 
 
 254 
 
 the new domicil preceded and was inde- 
 pendent of the loss of the old; but that 
 such could not have been his meaning is 
 evident from his express declaration in 
 the same case, that for the solution of 
 questions similar to those involved in 
 that case (succession to personal estate) 
 only one domicil can be acknowledged. 
 Lord Wensleydale, in Aikman v. Aik- 
 man (3 Macq. H. L. Gas. 854), laid 
 down the doctrine in somewhat different 
 and clearer phrase (although to some 
 extent open to the same construction) : 
 " Every man's domicil of origin must 
 be presumed to continue until he has ac- 
 quired another sole domicil by actual 
 residence with intention of abandoning 
 his domicil of origin." It is true that 
 these expressions relate only to the dis- 
 placement of domicil of origin by dom- 
 icil of choice, and this is as far as the 
 British authorities go upon this point ; 
 but the American authorities extend 
 the doctrine also to the displacement 
 of one domicil of choice by another. 
 See particularly Opinion of the Judges, 
 5 Mete. 587. 
 
§ 180.] CHANGE OP MUNICIPAL DOMICIL. [CHAP. VIII. 
 
 CHAPTER VIII. 
 
 CHANGE OP MUNICIPAL DOMICIL. 
 
 § 180. Municipal Domicil more easily changed than National 
 or Quasi-National Domicil. — What has hitherto been said with 
 respect to change of national or quasi-national domicil may 
 with some exception be said with respect to change of muni- 
 cipal domicil ; the principal difference consisting in this, that 
 national and g"Masi-national domicil are more difficult to 
 change than municipal domicil, and therefore the presump- 
 tion against a change of the former is stronger than against 
 a change of the latter. To state the question is to decide 
 that it is far more difficult to change one's domicil from New 
 York to England or Germany than from one municipal dis- 
 trict to another within the same State ; and such conclusion 
 would be based upon both the greater frequency and the more 
 important consequences of the one change than of the other. 
 A change of national or g"Mas2-national domicil involves, as we 
 have seen, consequences of a very serious character. But 
 with municipal domicil it is different. The question of a 
 change of the latter is generally raised for the purpose of 
 determining the place for the exercise of rights and the per- 
 formance of duties which may or must be exercised or ful- 
 filled somewhere within the State ; for example, in cases 
 involving questions of pauper settlement, eligibility to office, 
 the right to vote, liability to taxation, militia and jury service, 
 and the like. It is generally a question between neighboring 
 divisions, — wards of the same city, election precincts of the 
 same ward, or townships of the same county, — and involves 
 no consequences of a specially serious nature. As might be ex- 
 pected, therefore, the courts lean strongly in favor of allowing 
 the freest change of municipal domicil, and frequently hold 
 such change to have been accomplished upon very slight cir- 
 cumstances. The notion of municipal domicil, as has been 
 
 255 
 
§ 182.] THE LAW OF DOMICIL. [CHAP. VIII. 
 
 pointed out, does not prevail in Great Britain, and the cases 
 cited in this chapter are, therefore, exclusively American. 
 
 § 181. PreBumption against Change. — As we have already 
 seen, it is a general rule that every person has a inunicrgal 
 domicil.1 Says Shaw, C. J., in Otis v. Boston :2 "We think 
 tlielaw assumes that if a person is an inhabitant of the State, 
 he must be an inhabitant of some one town." The exceptions 
 to this rule have already been noted.'^ In the same general 
 way it may be said that every person receives a municipal 
 domicil of origin,* and this continues until he acquires another 
 domicil ; ^ which in its turn continues until a third is substi- 
 tuted for it.^ The presumption of law is against change, and 
 the burden of proof rests upon him who asserts it.^ Again, 
 no person can have more than one mu nicipal domicil at the 
 same time ; * and hence it results that the old domicil ceases 
 upon the acquisition of the new.® 
 
 § 182. Factum et Animus necessary for a Change. — The req- 
 uisite Factum. — A change of municipal domicil is a question 
 of act and intention (^ factum et animus').^ On the one hand," 
 mere absence from the former place of abode does not destroy 
 domicil there ; ^ nor does presence at a place for a temporary 
 
 1 Supra, § 86. herd o. Cassiday, 20 Tex. 24 ; Gouhe- 
 
 2 12 Cush. 44, 48. nant v. Cockrell, id. 96. 
 
 ^ Supra, §§ 87, 133. ' See cases cited ^iipra in notes 5 and 
 
 * Littlefield v. Brooks, 50 Me. 475 ; 6, and the following : Harvard College 
 
 Ahington v. North Bridgewater, 23 v. Grore, 5 Pick. 370; Cole v. Cheshire, 
 
 Pick. 170 ; Crawford v. Wilson, 4 Barb. 1 Gray, 441 ; 'Chicopee v. Whately, 6 
 
 504. Allen, 508 ; Tanner v. King, 11 La. R. 
 
 6 Littlefield v. Brooks, supra; Ah- 175 ; State v. Steele, 33 La. Ann. 910. 
 
 ington V. North Bridgewater, supra ; ^ See supra, § 97. 
 
 Opinion of the Judges, 5 Mete. 587 ; ' Opinion of the Judges, supra. See 
 
 Kirkland v. Whately, 4 Allen, 462 ; also Monson v. Fairfield, 55 Me. 117. 
 
 Bangs v. Brewster, 111 Mass. 382 ; i Greene v. Windham, 13 Me. 225 ; 
 
 Crawford v. Wilson, supra ; Cross v. Wayne v, Greene, 21 id. 357 ; Stockton 
 
 Evei-ts, 28 Tex. 523. v. Staples, 66 id. 197 ; Rumneyw. Camp- 
 
 6 Littlefield v. Brooks, supra; Ah- town, 10 N. H. 667; Harvard College b. 
 ington V. North Bridgewater, supra; Gore, 5 Pick. 370 ; Lyman v. Fiske, 17 
 Kilbum V. Bennett, 3 Mete. 199 ; Opin- id. 231 ; Wilson v. Terry, 11 Allen, 
 ion of the Judges, supra; Wilson v. 206; Bangs r. Brewster, 111 Mass. 882; 
 Terry, 11 Allen, 206 ; Crawford v. Wil- Crawford v. Wilson, 4 Barh. 504 ; Tan- 
 son, supra; Parsonfield v. Perkins, 2 ner v. King, 11 La. R. 175 ; McKowen 
 Greenl. 411 ; Wayne v. Greene, 21 Me. v. McGuire, 15 La. An. 637. 
 357 ; Anderson v. Anderson, 42 Vt. 350; 2 Knox v. Waldohorough, 3 Greenl. 
 State V. Steele, 88 La. An. 910 ; Shep- 455 ; Waterhorough c/. Newfield, 8 id. 
 256 
 
§ 182.] 
 
 CHANGE OP MUNICIPAL DOMICIL. [CHAP. VIII. 
 
 purpose fix domicil there." And, on the other hand, munic i- 
 pal domicil cannot be changed by mere intention ; act^ must 
 accompany it.* And this is so, even though the removal be 
 prevented by causes beyond the control of the person.^ 
 
 The act or factum necessary for a change of municipal 
 domicil is the same as that necessary for a change of national 
 or 5'Masi-national domicil ; namely, a complete change of bod- 
 ily presence from the old place of abode to the new. Hence 
 municipa l domicil is not changed while the person is in iti- 
 nere, nor until he has actually arrived at his destination.^ 
 
 203 ; Corinth v. Bradley, 51 Me. 540 ; 
 PhiUips u. Kingfield, 19 id. 375 ; 
 Wayne v. Greene, 21 id. 357 ; Brewer 
 V. Linnaeus, 36 id. 42 S ; Hampden v, 
 Levant, 59 id. 557 ; Bump v. Smith, 
 11 N. H. 48 ; Barton v. Irasburgh, 33 
 Vt. 159 ; Abington v. Boston, 4 Mass. 
 312 ; Commonwealth v. "Walker, id. 556; 
 Granby v. Amherst, 7 id. 1 ; Lincoln v. 
 Hapgood, 11 id. 350 ; "Williams v. "Whit- 
 ing, id. 424; Harvard College v. Gore, 
 5 Pick. 370 ; Cole v. Cheshire, 1 Gray, 
 441; Clinton v. "Westbrook, 38 Conn. 9; 
 Crawford v. "Wilson, 4 Barb. 504 ; State 
 V. Judge, 13 Ala. 805 ; Henrietta v. Ox- 
 ford, 2 Ohio St. 32 ; Bradley v. Fraser, 
 54 Iowa, 289 ; Babcock v. Cass, Twp. 
 65 id. 110; McGehee v. Brown, 4 La. 
 An. 186; Folger v. Slaughter, 19 id. 323. 
 
 ' See cases cited sitpra, notes 1 and 
 2, and Church v. Grossman, 49 Iowa, 
 447 ; State v. Dodge, 56 "Wis. 79. 
 
 * Hallowell v. Saco, 5 Greenl. 143 ; 
 Greene v. "Windham, 13 Me. 225 ; Gor- 
 ham V. Springfield, 21 id. 58 ; Eumney 
 V. Camptown, 10 N. H. 567 ; Stoddert 
 tf. "Ward, 31 Md. 562 ; and see generally 
 the eases cited supra, note 1. 
 
 ' Stoddert v. "Ward, supra. 
 
 " Littlefield v. Brooks, 50 Me. 475 ; 
 Harvard College v. Gore, 5 Pick. 370 ; 
 Otis V. Boston, 12 Cush. 44. In the 
 last-named case Shaw, C. J., said : " In 
 general, it is laid down as a fixed rule on 
 this subject, that every man must have 
 a domicil ; that he can have but one ; 
 and that of course a prior one will not 
 cease until a new one is acquired. It is 
 then asked, "What is the condition of one 
 
 who has purchased or hired a house, or 
 otherwise fixed his place of abode in 
 another place, left the town of his last 
 abode, with all his property and furniture, 
 and is on his way to his new abode ? Is 
 he an inhabitant of the place from which 
 he has departed ? If his removal were 
 towards another town in this State, we 
 think his place of being an inhabi- 
 tant would not be changed. He would 
 certainly continue to be an inhabitant 
 of the State, and taxable in some town; 
 and the only question would be, in 
 which he was an inhabitant on the first 
 of May. Three might claim him ; the 
 one he has left, the one he is in, and the 
 one to which he is proceeding. In such 
 case we think the rule would apply, and 
 his home would not be changed, either 
 to the place of his actual bodily pres- 
 ence, or of his destination, because in 
 neither would the fact of actual pres- 
 ence and the intent to reside concur. 
 Not the place where he was in itinere, 
 for want of intent ; nor of his destina- 
 tion for want of h is nctna.1 TflsidRTiee. " 
 Bangs V. Brewster, 111 Mass. 382, is in 
 apparent conflict with the doctrine that 
 a domicil cannot be acquired in itinere, 
 but its circumstances were peculiar. The 
 facts were as follows : A mariner whose 
 domicil was in the town of A. left that 
 town in 1867, and went to sea with his 
 wife, intending upon his return to the 
 State to make his home in the town of 
 B. In pursuance of that intent, before 
 his voyage was completed, he sent his 
 wife in 1868 to B., where she remained 
 until he himself arrived there, in July, 
 
 17 267 
 
§ 183.] THE LAW OF DOMICIL. [CHAP. VIII. 
 
 § 183. The requisite Animus. — With respect to the animus 
 or intention, the same general characteristics are necessary 
 whether the change be one of national, g'wasi'-national, or mu- 
 nicipal domicil. These are : — 
 
 (1) Capacity to choose.^ Infants ^ and married women ^ are 
 just as incapable of changing municipal domicil as any other. 
 As to persons of unsound mind,* however, probably a distinc- 
 tion must be taken. It is probable that a degree of mental 
 unsoundness which would incapacitate them from changing na- 
 tional or quasi-nsLtional domicil would not render them incapa- 
 ble of changing municipal domicil,^ particularly if such change 
 is made with the assent of their guardians or conservators.® 
 
 (2) Freedom of choiceJ The remarks which have been 
 heretofore made under this head apply also to municipal dom- 
 icil. For example, a prisoner does not acquire a domicil in 
 the place where he is imprisoned,^ nor does a pauper in the 
 place where he is kept.^ The same may be said with regard 
 to one who is forced to fly from his home by the dangers of 
 war^" or similar causes. 
 
 (3) Actual choice}^ With regard to this nothing need be 
 added to what has already been said. A mere voluntary 
 transfer of bodily presence from one town to another does 
 not work a change of domicil.^^ 
 
 But when we come to consider further the question of the 
 necessary animus, in its two aspects of animus non revertendi 
 and animus manendi, grave difficulties lie in the way of formu- 
 lating any definite or general rules. Here we must have 
 recourse above all things to the fundamental idea of domicil, 
 
 1869. Upon these facts it was held that * Probably, however, this merely re- 
 in May, 1869, his domicil was in B., and solves itself into the proposition that a 
 he was therefore there taxable; the con- guardian has the power to change the 
 currence of his intent and his wife's municipal domicil of his insane ward ; 
 presence in pursuance of that intent and this, we shall hereafter see, has been 
 being relied upon as fixing his domicil. held in a number of cases. See infra, 
 It is, however, improbable that this case §§ 264, 265. 
 wiU ever be followed further than its ' See supra, % 138. 
 peculiar circumstances warrant. * See infra, § 272. 
 
 1 See supra, § 137. » See infra, § 270. 
 
 2 See irifra, oh. 11. lO Folger u. Slaughter, 19 La. An. 323, 
 
 * See infra, ch. 10. and see ivfra, §§ 279, 284. 
 
 * See infra, ch. 12. " See mpra, § 143. 
 
 ^ See infra, § 264. 12 See mpra, % 182, note 3. 
 
 258 
 
§ 185. J CHANGE OP MUNICIPAL DOMICIL. [CHAP. VIII. 
 
 namely, home ; and it will generally be found that as be- 
 tween several municipal divisions, a person who is sui juris 
 has his municipal domicil in that place in which he has his 
 home in fact. 
 
 § 184. Id. Animus non Revertendi. — But how far must a 
 person intend to abandon his former place of abode, as a 
 place of abode, in order to effect a change of municipal domi- 
 cil ? This is a difficult question to answer, and the cases are 
 apparently in considerable conflict with regard to'it. We 
 have seen that with respect to national and jwasi'-national 
 domicil this abandonment milst be final and complete. But 
 the same cannot be affirmed with respect to municipal domi- 
 cil. We shall see, further along,i that a person may have two 
 residences in different places, as, for example, at different 
 seasons of the year, and may shift his municipal domicil from 
 one to the other without abandoning the former as a place of 
 abode. This occurs not unfrequently, but the usual mode of 
 changing municipal domicil is by the substitution of one place 
 of abode for another ; and in order to do this, the former 
 place of abode must be abandoned as a place of abode. 
 Hence, generally speaking, no change of municipal domicil 
 can occur where there is an animus revertendi after the ac- 
 complishment of a particular purpose.''' A mere contingent 
 intention,^ a vague and uncertain intention,* or, in the lan- 
 guage of Story ,s a "floating intention" to return, however, will 
 not prevent a change. 
 
 § 185. Id. Animus Manendi. It is equally clear that mere 
 presence in a place for a temporary purpose is not sufficient 
 to fix municipal domicil there.^ There must also be intention 
 to remain. And this is so, whether the former place of 
 abode has or has not been abandoned. But to what extent 
 must a person intend to remain in a place in. order to acquire 
 a municipal domicil there ? 
 
 It is clear that for this purpose the intended residence need 
 not be of the same permanent character as is demanded, as 
 
 1 Infra, § 421. ^ Confl. of L. § 46. See supra, § 154 
 
 2 See cases cited, § 182, note 2. et seq. 
 
 8 Barton v. Irasburgh, 33 Vt. 159. i See supra, § 182, note 3. 
 
 * Id. and Hartford v. Hartland, 19 
 Vt. 392. 
 
 259 
 
§ 185.] THE LAW OF DOMICIL. [CHAP. VIII. 
 
 we have seen in the last chapter, for a change of national 
 or ^Masi-national domicil. Certainly Vattel's^ definition of 
 domicil — namely, " the habitation fixed in any place with an 
 intention of always staying there " — is not applicable to 
 municipal domicil. At least it is not suited to the circum- 
 stances of this country, the habits of whose people are migra- 
 tory, and of very many of whom it cannot be affirmed that 
 they fix their municipal abodes with any positive intention 
 of always continuing there.^ 
 
 In many cases of municipal domicil the requisite animus 
 manendi is described as intention to remain for "an indefinite 
 time." * That this is not a satisfactory test of national or 
 g-was^-national domicil, has already been pointed out.^ When 
 applied to municipal domicil it is probably less objectionable, 
 although even here it is capable of misinterpretation and of 
 being carried to an undue length. Such was the case in Ja- 
 maica V. Townshend,^ where a person who resided in J. pur- 
 chased a tract of land in the same town and set about building 
 a house upon it. In the mean time he removed to the town of 
 L., intending to remain there only during the building of his 
 house and then to return to J. and occupy said house. Under 
 these circumstances it was held that he had changed his dom- 
 icil, although the building of the house occupied only twenty- 
 nine days. 
 
 The distinction between national and municipal domicil 
 with respect to the animus manendi was thus referred to by 
 Foster, J., in Wilbraham v. Ludlow : ^ " Our own adjudged 
 cases sufficiently establish the rule that one who is residing 
 in a place with the purpose of remaining there for an indefi- 
 
 2 Bk. 1, ch. 19, § 218. indefinite time the requisite animus 
 
 8 Putnam v. Johnson, 10 Mass. 488. manendi. 
 
 * Greene v. Windham, 13 Me. 225 ; ^ gee supra, § 171. 
 Wilton V. Falmouth, 15 id. 479 ; Stoc- ^ 19 yt. 267 ; see also Hill v. Ful- 
 ton V. Staples, 66 id. 197 ; Moore v. ler, 14 Me. 125. The exact contrary 
 WUkins, 10 N. H. 452 ; Mead v. Box- was held in Clinton v. Westhrook, 38 
 borough, 11 Cush. 362 ; Whitney v. Conn. 9, where the facts were identical 
 Sherbom, 12 Allen, 111; Wilbraham with those in Jamaica ». Townshend. 
 V. Ludlow, 99 Mass. 587 ; Landis v. ' 99 Mass. 587, 592. See also the 
 Walker, 15 La. An. 213. Most of remarks of Totten, J., in Stratton 1;. 
 these cases, however, demand clear Brigham, 2 Sneed (Tenn.), 420, given 
 proof of animus non revertendi in or- supra, § 174, note 2. 
 der to make intention to remain for an 
 
 260 
 
§ 186.] CHANGE OP MUNICIPAL DOMICIL. [CHAP. VIII. 
 
 nite period of time, and without retaining and keeping up any 
 animus revertendi, or intention to return to the former home 
 which he has abandoned, will have his domicil in the place of 
 his actual residence. Where the question is one of national 
 domicil, this statement may not be correct ; for such a con- 
 dition of facts might not manifest an intention of expatria- 
 tion. But it is accurate enough for cases like the present, 
 which relate to a change of domicil from one place to another 
 within the same Commonwealth." 
 
 It is probable that to municipal domicil rather than to 
 national or jwagj-national domicil should be applied the oft- 
 quoted language of Story :^ " If a person has actually removed 
 to another place with an intention of remaining there for an 
 indefinite time, and as a place of fixed present domicil, it 
 is to be deemed his place of domicil, notwithstanding he 
 may entertain a floating intention to return at some future 
 period." 
 
 § 186. Id. The Negative View of Animus Manendi. — To 
 municipal domicil also properly belongs the definition by 
 Parker, J., in Putnam v. Johnson,^ namely : " The habitation 
 fixed in any place without any present intention of removing 
 therefrom is the domicil." This language was used in a case 
 of municipal domicil, and the remarks of the learned judge 
 throughout show that he had particularly in mind that species 
 of domicil. It must be remembered, however, that mere pres- 
 ence in a place without any special views as to future residence 
 either there or elsewhere will not establish domicil there. In 
 such case the former domicil would be presumed to continue. 
 The phrase " habitation fixed " is probably to be construed as 
 including animus manendi of some description; so that the 
 definition above given seems to resolve itself substantially 
 into that given by President Rush, in Guier v. O'Daniel,^ — 
 namely, "residence in a particular place accompanied with 
 positive or presumptive proof of continuing it an unlimited 
 time." 
 
 8 Confl. of L. § 46. 229; Whitney v. Sherbom, 12 Allen, 
 
 1 10 Mass. 488, 501. This view of 111; Parker City v. Du Bois (Pa.), 
 the necessary animus manendi is also 8 Cent. R. 207 ; Stratton v. Brighara, 
 taken in the following cases of municipal 2 Sneed (Tenn.), 420. 
 domicil: Turner v. Buckfield, 3 Greenl. * 1 Binney, 349, note. 
 
 261 
 
§ 189.] THE LAW OF DOMICIL. [CHAP. VIII. 
 
 § 187. Id. Intention to make the new Place of Abode 
 " Home." — In many of the cases the requisite intention for a 
 change of municipal domicil is said to be intention to make 
 the new place of abode the " home " of the person,' meaning 
 thereby, of course, not " home " in the loose and general sense 
 in which any place of abode, whether of a temporary or per- 
 manent character, is sometimes spoken of as "home," but 
 " home " in its more restricted sense, in which, as we have 
 already seen, the idea of permanency is, at least to some 
 extent, included. 
 
 § 188. Id. Contingent Animus Manendi. — How far a merely 
 contingent animus manendi will suflSce for a change of muni- 
 cipal domicil is not at all clear. In Putnam v. Johnson,^ 
 Parker, J., said : " In this new and enterprising country it is 
 doubtf^il whether one half of the young men, at the time of 
 their emancipation, fix themselves in any town with an inten- 
 tion of always staying there. They settle in a place by way of 
 experiment, to see whether it will suit their views of business 
 and advancement in life ; and with an intention of removing 
 to some more advantageous position, if they should be dis- 
 appointed. Nevertheless, they have their home in their chosen 
 abode while they remain." But it certainly is not every con- 
 tingent residence in a place which will establish a domicil 
 there.2 Much, doubtless, will depend upon the nearness or re- 
 moteness of the contingency, and upon the extent to which 
 the former place of abode has been abandoned. If the latter 
 clearly appear to have been finally abandoned, the courts are 
 disposed to require animus manendi of much slighter character 
 than if it remain in doubt or be mainly inferrible from the 
 nature of the animus manendi. 
 
 § 189. Double Residence. — In cases of double residence, 
 when a change of domicil is alleged from one place of resi- 
 dence to that of the other, it is difficult, if not impossible, to 
 
 1 Anderson v. Anderson, 42 Vt. 350 ; La. R. 557, where the defendant resided 
 
 Wilson V. Terry, 11 Alien, 206 ; Bangs in New Orleans for the purpose of trying 
 
 V. Brewster, 111 Mass. 382 ; Parker City the commissimi business. The case, how- 
 
 V. Du Bois, supra ; State v. Dodge, 56 ever, turned much upon the retention of 
 
 Wis.79. the former place of abode and the con- 
 
 110 Mass. 488, 501. tinuance of defendant's family there. 
 
 ^ E. g., Williams v. Henderson, 18 
 
 262 
 
§ 189.] CHANGE OP MUNICIPAL DOMICIL. [CHAP. VIII. 
 
 lay down any general rule. It is clear that a total abandon- 
 ment of the former is not required, and the problem in such 
 cases usually is to determine to which of the two residences 
 belong more of the characteristics of " home." This subject 
 will be further considered hereafter.^ 
 
 1 See infra, % 421. 
 
 263 
 
§ 191.J THE LAW OP DOMICIL. [CHAP. IX. 
 
 CHAPTER IX. 
 
 REVERTER OF DOMICIL. 
 
 § 190. The maxim " Domicil of origin reverts easily," has 
 already been discussed so far as it is a principle of evidence 
 by which to decide between acquired domicil and domicil of 
 origin. But there is in the principle of reverter also a tech- 
 nical and peculiarly artificial side, according to which the 
 factwm required in the ordinary change of domicil — to wit, a 
 change of bodily presence from one place to another — is in 
 part dispensed with. 
 
 § 191. The Rule of Reverter as laid down by Story. — Story 
 thus lays down the rule ; " If a man has acquired a new dom- 
 icil, different from that of his birth, and he removes from it 
 with an intention to resume his native domicil, the latter is 
 re-acquired even while he is on his way, in itinere, for it 
 reverts from the moment the other is given up." ^ This he 
 states as the rule applicable " to changes of domicil from one 
 place to another within the same couiltry or territorial sov- 
 ereignty ; " that is to say, g'wasi-national domicil.^ With re- 
 spect to changes between different countries or sovereignties, 
 he lays down the following : " A national character, acquired 
 in a foreign country by residence, changes when the party has 
 left the country animo non revertendi, and is on his return to 
 the country where he had his antecedent domicil. And espe- 
 cially, if he be in itinere to his native country with that in- 
 tent, his native domicil revives while he is yet in transitu ; 
 for the native domicil easily reverts. The moment a foreign 
 domicil is abandoned, the native domicil is re-acquired. But 
 a mere return to his native country, without an intent to 
 abandon his foreign domicil, does not work any change of his 
 domicil." ^ 
 
 1 Confl. of L. § 47. 
 
 * And perhaps, although not probably, municipal domicil. 
 
 » Confl. of L. § a. 
 
 264 
 
§ 192.] REVERTER OP DOMICIL. [CHAP. IX. 
 
 The only fair construction whicli can be put upon these 
 passages is that reverter takes place only when the party has 
 abandoned his acquired domicil and is in itinere to the place 
 of his original domicil;* and this, as we shall see, is the 
 American doctrine.^ This is but reasonable and just ; for it 
 seems but right that a person who has turned his back upon 
 his adopted country and his face toward his native country, 
 should be deemed to intend to deliver himself from the do- 
 mhiion of the laws of the former and subject himself to the 
 laws of the latter, and but right, further, for courts to give 
 effect to such intention. 
 
 § 192. The British Doctrine. — Udny v. TTdny. — The British 
 doctrine, however, goes further. It has already been referred 
 to, and can now be best stated in the language of the judges 
 who created it. 
 
 Udny V. Udny ^ was a case involving legitimation per subse- 
 quens matrimonium. It originated in Scotland, and came up 
 from the Court of Session to the House of Lords on appeal. 
 The facts were as follows : Colonel Udny, though born at 
 Leghorn in 1779, where his father was consul, had by pater- 
 nity his domicil in Scotland. He does not appear to have 
 acquired any new domicil up to 1812, when he was married 
 and took upon lease a house in London, where he resided for 
 thirty-two years, paying occasional visits to Scotland. In 
 1844, having got into pecuniary difficulties, he broke up his 
 establishment in London and repaired to Boulogne, where 
 he remained for nine years, occasionally visiting Scotland as 
 before. In 1846 his wife died. Some time after the death of 
 his wife he formed an illicit connection at Boulogne with Miss 
 A., which resulted in the birth in England of a son in 1853 ; 
 Miss A. having come to England, and Udny having accompa- 
 nied her, for the purpose of procuring the attendance of an 
 English accoucheur. The parents of this child — who was 
 the respondent in this case — were subsequently, in 1854, 
 
 * Although the first sentence of the tain that Story distinctly meant to lay 
 
 last quotation would seem to contem- down such doctrine, 
 
 plate reverter of acquired as well as ' Infra, § 201. 
 
 original domicil. But this is inadmis- i L. R. 1 Sch. App. 441 ; s. c. 7 
 
 sible (see infra, § 208),anditi3notcer- Macph. (Sc. Sess. Cas. 3d ser. 1869) 89. 
 
 265 
 
§ 193.] THE LAW OF DOMICIL. [CHAP. IX. 
 
 married in Scotland ; and the question was whether respon- 
 dent, under these circumstances, had become legitimate per 
 subsequens matrimonium. 
 
 The Court of Session ^ decided that Colonel Udny's domicil 
 of origin was Scotch, and that he had never subsequently lost 
 it, notwithstanding his long absence from Scotland ; and that 
 his son, the respondent, " though illegitimate at his birth, was 
 legitimated by the subsequent marriage of his parents." The 
 House of Lords ordered and adjudged that the interlocutor of 
 the Court of Session be varied by substituting for the words 
 " that he never lost his said domicil of origin," these words, 
 " and if such domicil of origin was ever changed, yet by leav- 
 ing England in 1844 his domicil of origin reverted;" and 
 with this variation affirmed the interlocutor. 
 
 It thus appears that the question of reverter was squarely 
 before the House ; and after the case had been argued by emi- 
 nent counsel, the Law Lords delivered their opinions as fol- 
 lows. As the case is one of much importance they are here 
 given at length. 
 
 § 193. Id. id. Lord Hatherley's Remarks. — Lord Chan- 
 cellor Hatherley said : " I am of opinion that the English 
 domicil of Colonel Udny, if it were ever acquired, was for- 
 mally and completely abandoned in 1844, when he sold his 
 house and broke up his English establishment with the inten- 
 tion not to return. And, indeed, his return to that country 
 was barred against him by the continued threat of process by 
 his creditors. I think that on such abandonment his domicil 
 of origin revived. It is clear that by our law a man must 
 have some domicil, and must have a single domicil. It is 
 clear, on the evidence, that the Colonel did not contemplate 
 residing in Prance ; and, indeed, that has scarcely been con- 
 tended for by the appellant. But the appellant contends that 
 when once a new domicil is acquired, the domicil of origin 
 is obliterated, and cannot be re-acquired more readily or by 
 any other means than those by which the first change of the 
 original domicil is brought about, namely, animo et facto. 
 He relied for this proposition on the decision in Munroe v. 
 
 2 5 Maoph. (So. Seas. Cas. 3d ser. 1866) 164. 
 266 
 
§ 193.] REVERTER OP DOMICIL. [CHAP. IX. 
 
 Douglas, where Sir John Leach certainly held that a Scotsman, 
 having acquired an Anglo-Indian domicil, and having finally- 
 quitted India, but not yet having settled elsewhere, did not 
 re-acquire his original domicil ; saying expressly, ' I can find 
 no difference in principle between an original domicil and an 
 acquired domicil.' That he acquired no new domicil may be 
 conceded ; but it appears to me that sufficient weight was not 
 given to the effect of the domicil of origin, and that there is a 
 very substantial difference in principle between an original 
 and an acquired domicil. I shall not add to the many inef- 
 fectual attempts to define domicil. But the domicil of origin 
 is a matter wholly irrespective of any animus on the part of 
 its subject. He acquires a certain status civilis, as one of 
 your lordships has designated it, which subjects him and his 
 property to the municipal jurisdiction of a country which he 
 may never even have seen, and in which he may never reside 
 during the whole course of his life, his domicil being simply de- 
 termined by that of his father. A change of that domicil can 
 only be effected animo et facto, — that is to say, by the choice 
 of another domicil, evidenced by residence within the territo- 
 rial limits to which the jurisdiction of the new domicil ex- 
 tends. He, in making this change, does an act which is more 
 nearly designated by the word ' settling ' than by any one 
 word in our language. Thus we speak of a colonist settling 
 in Canada or Australia, or of a Scotsman settling in England; 
 and the word is frequently used as expressive of the act of 
 change of domicil in the various judgments pronounced by 
 our courts. But this settlement animo et facto by which the 
 new domicil is acquired is, of course, susceptible of abandon- 
 ment, if the intention be evidenced by facts as decisive as 
 those which evidenced its acquirement. 
 
 " It is said, by Sir John Leach, that the change of the 
 newly acquired domicil can only be evidenced by an actual 
 settling elsewhere, or (which is, however, a remarkable quali- 
 fication) by the subject of the change dying in itinere when 
 about to settle himself elsewhere. But the dying in itinere to 
 a wholly new domicil would not, I apprehend, change a domi- 
 cil of origin if the intended new domicil were never reached ; 
 so that at once a distinction is admitted between what is 
 
 267 
 
§ 193.] THE LAW OP DOMICIL. [CHAP. IX. 
 
 necessary to re-acquire the original domicil and the acquiring 
 of a third domicil. Indeed, the admission of Sir John Leach 
 seems to have been founded on the actual decision of the case 
 of Colville V. Lauder,^ cited in full in Munroe v. Douglas,^ 
 from the Dictionary of Decisions. In that case a person of 
 Scottish origin became domiciled at St. Vincent, but left that 
 island, writing to his father and saying that his health was 
 injured, and he was going to America ; and that if he did not 
 succeed in America, he would return to his native country. 
 He was drowned in Canada, and some memoranda were found 
 indicating an intention to return to Scotland, and it was held 
 that his Scottish domicil had revived. 
 
 "It seems reasonable to say that if the choice of a new 
 abode and actual settlement there constitute a change of the 
 original domicil, then the exact converse of such a procedure 
 — namely, the intention to abandon the new domicil, and an 
 actual abandonment of it — ought to be equally effective to 
 destroy the new domicil. That which may be acquired may 
 surely be abandoned ; and though a man cannot, for civil rea- 
 sons, be left without a domicil, no such difficulty arises if it 
 be simply held that the original domicil revives. That origi- 
 nal domicil depended not on choice, but attached itself to its 
 subject on his birth ; and it seems to me consonant both to 
 convenience and to the currency of the whole law of domicil, 
 to hold that the man born with a domicil may shift and vary 
 it as often as he pleases, indicating each change by intention 
 and act, whether in its acquisition or abandonment ; and fur- 
 ther, to hold that every acquired domicil is capable of simple 
 abandonment animo et facto, the process by which it was 
 acquired, without its being necessary that a new one should 
 be at the same time chosen ; otherwise one is driven to the 
 absurdity of asserting a person to be domiciled in a country 
 which he has resolutely forsaken and cast off, simply because 
 he may (perhaps for years) be deliberating before he settles 
 himself elsewhere. Why should not the domicil of origin, 
 cast on him by no choice of his own, and changed for a time, 
 
 ' Morrison, Diet. Dec. Succession, App. No. 1 ; Robertson, Pers. Sue. p 166. 
 2 5 Madd. 379. 
 
 268 
 
§ 193.] REVERTER OF DOMICIL. [CHAP. IX. 
 
 be the state to which ,he naturally falls back when his first 
 choice has been abandoned animo et facto, and whilst he is 
 deliberating before he makes a second choice ? 
 
 " Lord Cottenham, in Munro v. Munro,^ says : ' So firmly 
 indeed did the Civil Law consider the domicil of origin to 
 adhere, that it holds that if it be actually abandoned and a 
 domicil acquired, but that again abandoned, and no new dom- 
 icil acquired in its place, the domicil of origin revives.' No 
 authority is cited by his lordship for this. He probably 
 alluded to some observations which occur in the case of La 
 Virginie,* where Sir William Scott said : ' It is always to be 
 remembered that the native character easily reverts, and that 
 it requires fewer circumstances to constitute domicil in the 
 case ol a native subject than to impress the national character 
 on one who is originally of another country.' 
 
 " In the case of The Indian Chief,^ the question was whether 
 the ship was the property of a British subject ; for if so, her 
 trading was illegal. The owner, Mr. Johnson, averred that 
 he was an American. Sir William Scott held him to be an 
 American by origin, but that, having come to England in 1783 
 and remained till 1797, he had become an English merchant. 
 But he quitted England before the capture of the vessel, and 
 letters were produced showing his intention to return to 
 America, which he does not appear to have reached until 
 after. And Sir William Scott says : ' The ship arrives a few 
 weeks after his departure ; and taking it to be clear that the 
 natural character of Mr. Johnson as a British merchant was 
 founded on residence only, that it was acquired by residence, 
 and rested on that circumstance alone, it must be held that 
 from the moment he turned his back on the country where he 
 had resided on his way to his own country he was in the act 
 of resuming his original character, and is to be considered as 
 an American. The character that is gained by residence 
 ceases by residence. It is an adventitious character, which 
 no longer adheres to him from the moment that he puts 
 
 ' 7 CI. & F. 842. civil-law authorities in using the lan- 
 
 * 5 C. Bob. Ad. 99. Lord Hatherley guage quoted. See supra, § 107, and 
 
 is probably mistaken in assuming that infra, § 202, note 1. 
 
 Lord Cottenham did not have in view * 3 C. Rob. Ad. 12. 
 
 269 
 
I 194.J THE LAW OP DOMICIL. [CHAP. IX. 
 
 himself in motion bona fide to quit the country sine animo 
 revertendi.' 
 
 " Story, in his Conflict of Laws, sect. 47 (at the end), says : 
 ' If a man has acquired a new domicil different from that of 
 his birth, and he removes from it with intention to resume 
 his native domicil, the latter is re-acquired even while he 
 is on his way, for it reverts from the moment the other is 
 given up.' 
 
 " The qualification that he must abandon the new domicil 
 with the special intent to resume that of origin, is not,' I 
 think, a reasonable deduction from the rules already laid 
 down by decision, because intent not followed by a definitive 
 act is not sufficient. The more consistent theory is, that the 
 abandonment of the new domicil is complete animo et' facto, 
 because the factum is the abandonment, the animus is that of' 
 never returning. 
 
 " I have stated my opinion more at length than I should 
 have done were it not of great imp»rtance that some fixed com- 
 mon principles should guide the courts in every country on 
 international questions. In questions of international law we 
 should not depart from any settled decisions, nor lay down 
 any doctrine inconsistent with them. I think some of the 
 expressions used in former cases as to the intent ' exuere 
 patriam,' or to become ' a Frenchman instead of an English- 
 man,' go beyond the question of domicil. The question of 
 naturalization and of allegiance is distinct from that of domi- 
 cil. A man may continue to be an Englishman, and yet his 
 contracts and the succession to his estate may have to be de- 
 termined by the law of the country in which he has chosen to 
 settle himself. He cannot, at present at least, put off and 
 resume at will obligations of obedience to the government of 
 the country of which at his birth he is a subject ; but he may 
 many times change his domicil. It appears to me, however, 
 that each acquired domicil may be also successively abandoned 
 simpliciter, and that thereupon the original domicil simpliciter 
 reverts." 
 
 § 194. Id. id. Lord Chelmsford's Remarks. — Lord Chelms- 
 ford said : " My lords, at the opening of the argument 
 of this appeal for the respondent, his learned counsel were 
 270 
 
§ 194.] BEVEBTEB OP DOMICIL. [CHAP. IX. 
 
 informed that your lordships were of opinion that the domi- 
 cil of Colonel Udny down to the year 1812 was his Scotch 
 domicil of origin, and that the case was therefore narrowed 
 down to the questions raised by the appellant, — whether that 
 domicil had been superseded by the acquisition of another 
 domicil in England, and whether such after-acquired domicil 
 was retained at the time of the birth of the respondent, and 
 continued down to the period of the marriage of the respon- 
 dent's parents in Scotland. 
 
 " In considering these questions, it will be necessary to 
 ascertain the nature and effect of a domicil of origin ; whether 
 it is like an after-acquired domicil, which, when it is relin- 
 quished, can be re-acquired only in the same manner in which 
 it was originally acquired, or whether, in the absence of any 
 . other domicil, the domicil of origin must not be had recourse 
 to for the purpose of determining any question which may 
 arise as to a party's personal rights and relations. 
 
 " Story, in his Conflict of Laws (sect. 48), says : ' The 
 moment a foreign domicil is abandoned, the native domicil is 
 re-acquired.' Great stress was laid by the appellant in his 
 reference to this passage upon the word ' re-acquired,' which 
 is obviously an inaccurate expression. For, as was pointed 
 out in the course of the argument, a domicil of origin is not 
 an acquired domicil, but one which is attributed to every per- 
 son by law. The meaning of Story, therefore, clearly is, that 
 the abandonment of a subsequently acquired domicil ipso facto 
 restores the domicil of origin. And this doctrine appears to 
 be founded upon principle, if not upon direct authority. 
 
 " It is undoubted law that no one can be without a domicil. 
 If, then, a person has left his native domicil and acquired a 
 new one, which he afterwards abandons, what domicil must 
 be resorted to to determine and regulate his personal status 
 and rights ? Sir John Leach, V. C, in Munroe v. Douglas,^ 
 held that in the case supposed the acquired domicil attaches 
 to the person till the complete acquisition of a subsequent 
 domicil, and (as to this point) he said there was no difference 
 in principle between the original domicil and an acquired 
 
 1 See supra. 
 
 271 
 
§ 194.] THE LAW OF DOMICIL. [CHAP. IX. 
 
 domicil. His Honor's words are : 'A domicil cannot be lost 
 by mere abandonment. It is not to be defeated animo merely, 
 but animo et facto, and necessarily remains until a subsequent 
 domicil be acquired, unless the party die in itinere towards an 
 intended domicil.' There is an apparent inconsistency in this 
 passage ; for the Vice-Chancellor, having said that a domicil 
 necessarily remains until a subsequent domicil be acquired 
 animo et facto, added, ' unless the party die in itinere towards 
 an intended domicil,' — that is, at a time when the acquisition 
 of the subsequent domicil is incomplete and rests in intention 
 only. 
 
 " I cannot understand upon what ground it can be alleged 
 that a person may not abandon an acquired domicil altogether, 
 and carry out his intention fully by removing animo non rever- 
 tendi; and why such abandonment should not be complete 
 until another domicil is acquired in lieu of the one thus 
 relinquished. 
 
 " Sir William Scott, in the case of The Indian Chief,^ said : 
 ' The character that is gained by residence ceases by residence. 
 It is an adventitious character which no longer adheres to a 
 person from the moment he puts himself in motion hpna fide 
 to quit the country sine animo revertendi ; ' and he mentions 
 the case of ' a British-born subject, who had been resident in 
 Surinam and St. Eustatius, and had left those settlements 
 with an intention of returning to this country, but had got no 
 farther than Holland, the mother country of those settlements, 
 when the war broke out ; and it was determined by the Lords 
 of Appeal that he was in itinere, — that he had put himself in 
 motion, and was in pursuit of his native British character.' 
 
 " Sir John Leach seems to me to be incorrect also in saying 
 that in the case of the abandonment of an acquired domicil 
 there is no difference in principle between the acquisition of 
 an entirely new domicil and the revival of the domicil of 
 origin. It is said by Story, in sect. 47 of his Conflict of Laws, 
 tliat ' If a man has acquired a new domicil diiferent from that 
 of his birth, and he removes from it with an intention to re- 
 sume his native domicil, the latter is re-acquired even while 
 
 ^ See supra. 
 
 272 
 
§ 195.J REVERTER OP DOMICIL. [CHAP. IX. 
 
 he is on his way, in itinere ; for it reverts from the moment 
 the other is given up.' This certainly cannot be predicated of 
 a person journeying towards a new domicil, which it is his 
 intention to acquire. 
 
 " I do not think that the circumstances mentioned by Story 
 in the above passage, viz., tliat the person has removed from 
 his acquired domicil with an intention to resume his native 
 domicil, and that he is in itinere for the purpose, are at all 
 necessary to restore the domicil of origin. The true doctrine 
 appears to me to be expressed in the last words of the pas- 
 sage : ' It ' (the domicil of origin) ' reverts from the moment 
 the other is given up.' 
 
 " This is a necessary conclusion, if it be true that an ac- 
 quired domicil ceases entirely whenever it is intentionally 
 abandoned, and that a man can never be without a domicil. 
 The domicil of origin always remains, as it were, in reserve, 
 to be resorted to in case no other domicil is found to exist. 
 This appears to me to be the true principle upon this subject, 
 and it will govern my opinion upon the present appeal." 
 
 § 195. Id. id. Lord Westbury's Remarks. — Lord West- 
 bury said : " The law of England, and of almost all civilized 
 countries, ascribes to each individual at his birth two distinct 
 legal states or conditions ; one by virtue of which he becomes 
 the subject of some particular country, binding him by the tie of 
 natural allegiance, and which may be called his political status; 
 another, by virtue of which he has ascribed to him the char- 
 acter of a citizen of some particular country, and as such is 
 possessed of certain municipal rights and subject to certain 
 obligations, — which latter character is the civil status or con- 
 dition of the individual, and may be quite different from his 
 political status. The political status may depend on different 
 laws in different countries ; whereas the civil status is gov- 
 erned universally by one single principle, — namely, that of 
 domicil, which is the criterion established by law for the pur- 
 pose of determining civil status. For it is on this basis that 
 the personal rights of the party — that is to say, the law which 
 determines his majority or minority, his marriage, succession, 
 testacy, or intestacy — must depend. International law de- 
 pends on rules which, being in great measure derived from the 
 
 18 273 
 
§ 195.] THE LAW OP DOMICIL. [CHAP. IX. 
 
 Roman law, are common to the jurisprudence of all civilized 
 nations. It is a settled principle that no man shall be without 
 a domicil ; and to secure this result the law attributes to 
 every individual as soon as he is born the domicil of his father, 
 if the child be legitimate, and the domicil of the mother, if 
 illegitimate. This has been called the domicil of origin, and 
 is involuntary. Other domicils, including domicil by operation 
 of law, as on marriage, are domicils of choice. For as soon 
 as an individual is sui juris, it is competent to him to elect 
 and assume another domicil, the continuance of which de- 
 pends upon his will and act. When another domicil is put 
 on, the domicil of origin is, for that purpose, relinquished, and 
 remains in abeyance during the continuance of the domicil of 
 choice ; but as the domicil of origin is the creature of law, 
 and independent of the will of the party, it would be incon- 
 sistent with the principles on which it is by law created and 
 ascribed, to suppose that it is capable of being by the act of 
 the party entirely obliterated and extinguished. It revives 
 and exists whenever there is no other domicil, and it does not 
 require to be regained or reconstituted animo et facto, in the 
 manner which is necessary for the acquisition of a domicil of 
 choice. 
 
 " Domicil of choice is a conclusion or inference which the 
 law derives from the fact of a man fixing voluntarily his sole 
 or chief residence in a particular place, with an intention of 
 continuing to reside there for an unlimited time. This is a 
 description of the circumstances which create or constitute 
 a domicil, and not a definition of the term. There must be a 
 residence freely chosen, and not prescribed or dictated by any 
 external necessity, such as the duties of office, the demands of 
 creditors, or the relief from illness, and it must be residence 
 fixed not for a limited period or particular purpose, but gen- 
 eral and indefinite in its future contemplation. It is true 
 that residence, originally temporary, or intended for a lim- 
 ited period, may afterwards become general and unlimited, 
 and in such a case, so soon as the change of purpose, or 
 animus manendi, can be inferred, the fact of domicil is 
 established. 
 
 " The domicil of origin mav be extinguished by act of law, 
 274 
 
§ 195.] REVERTER OP DOMICIL. [CHAP. IX. 
 
 as, for example, by sentence of death or exile for life, which 
 puts an end to the status civilis of the criminal ; but it cannot 
 be destroyed by the will and act of the party. Domicil of 
 choice, as it is gained animo et facto, so it may be put an end 
 to in the same manner. Expressions are found in some 
 books, and in one or two cases, that the first or existing domi- 
 cil remains until another is acquired. This is true if applied 
 to the domicil of origin, but cannot be true if such general 
 words were intended (which is not probable) to convey the 
 conclusion that a domicil of choice, though unequivocally re- 
 linquished and abandoned, clings, in despite of his will and 
 acts, to the party until another domicil has animo et facto 
 been acquired. The cases to which 1 have referred are, in 
 my opinion, met and controlled by other decisions. A natural- 
 born Englishman may, if he domiciles himself in Holland, 
 acquire and have the status civilis of a Dutchman, which is of 
 course ascribed to him in respect of his settled abode in the 
 land ; but if he breaks up his establishment, sells his house 
 and furniture, discharges his servants, and quits Holland, de- 
 claring that he will never return to it again, and taking with 
 him his wife and children, for the purpose of travelling in 
 France or Italy, in search of another place of residence, is it 
 meant to be said that he carries his Dutch domicil — that is, his 
 Dutch citizenship — at his back, and that it clings to him per- 
 tinaciously until he has finally set up his tabernacle in another 
 country ? Such a conclusion would be absurd ; but there is 
 no absurdity, and, on the contrary, much reason, in holding 
 that an acquired domicil may be effectually abandoned by 
 unequivocal intention and act ; and that when it is so deter- 
 mined the domicil of origin revives until a new domicil of 
 choice be acquired. According to the dicta in the books and 
 cases referred to, if the Englishman whose case we have been 
 supposing, lived for twenty years after he had finally quitted 
 Holland, without acquiring a new domicil, and afterwards 
 died intestate, his personal estate would be administered ac- 
 cording to the law of Holland, and not according to that of 
 his native country. This is an irrational consequence of the 
 supposed rule. But when a proposition supposed to be au- 
 tliorized by one or more decisions involves absurd results, 
 
 275 
 
§ 195.] THE LAW OP DOMICIL. [CHAP. IX. 
 
 there is great reason for believing that no such rule was in- 
 tended to be laid down. 
 
 " In Mr. Justice Story's Conflict of Laws (the last edition), 
 it is stated that ' the moment the foreign domicil (that is, the 
 domicil of choice) is abandoned, the native domicil or domicil 
 of origin is re-acquired.' And such appears to be the just 
 conclusion from several decided cases, as well as from the 
 principles of the law of domicil. 
 
 " In adverting to Mr. Justice Story's work, I am obliged to 
 dissent from a conclusion stated in the last edition of that 
 useful book, and which is thus expressed : ' The result of the 
 more recent English cases seems to be, that for a change of 
 national domicil there must be a definite and effectual change 
 of nationality.' In support of this proposition, the editor 
 refers to some words which appear to have fallen from a noble 
 and learned lord in addressing this house in the case of Moor- 
 house V. Lord,^ when, in speaking of the acquisition of a 
 French domicil. Lord Kingsdown says, ' A man must intend 
 to become a Frenchman instead of an Englishman.' These 
 words are likely to mislead, if they were intended to signify 
 that for a change of domicil there must be a change of nation- 
 ality, — that is, of natural allegiance. That would be to con- 
 found the political and civil states of an individual, and to 
 destroy the difference between ^aina and domieilium. 
 
 " The application of these general rules to the circum- 
 stances of the present case is very simple. I concur with my 
 noble and learned friend, that the father of Colonel Udny, the 
 consul at Leghorn, and afterwards at Venice, and again at 
 Leghorn, did not by his residence there in that capacity lose 
 his Scotch domicil. Colonel Udny was, therefore, a Scotch- 
 man by birth. But I am certainly inclined to think that 
 when Colonel Udny married, and (to use the ordinary 
 phrase) settled in life, and took a long lease of a house in 
 Grosvener Street, and made that a place of abode of himself 
 and his wife and children, becoming, in point of fact, subject 
 to the municipal duties of a resident in that locality ; and 
 when he had remained there for a period, I think, of thirty- 
 two years, there being no obstacle in point of fortune, occu- 
 1 10 H. L. Cas. 272. 
 
 276 
 
§ 197.] EEVEBTER OP DOMICIL. [CHAP. IX. 
 
 pation, or duty, to his going to reside in his native country, — 
 under these circumstances, I should come to the conclusion, 
 if it were necessary to decide the point, that Colonel Udny de- 
 liberately chose and acquired an English domicil. But if he 
 did so, he as certainly relinquished that English domicil in 
 the most effectual way by selling or surrendering the lease of 
 his house, selling his furniture, discharging his servants, and 
 leaving London in a manner which removes all doubt of his 
 ever intending to return there for the purpose of residence. 
 If, therefore, he acquired an English domicil, he abandoned it 
 absolutely animo et facto. Its acquisition being a thing of 
 choice, it was equally put an end to by choice. He lost it the 
 moment he set foot on the steamer to go to Boulogne, and at 
 the same time his domicil of origin revived. The rest is plain. 
 The marriage and the consequences of that marriage must 
 be determined by the law. of Scotland, the country of his 
 domicil." 
 
 § 196. Id. Doctrine of Udny v. Udny not dravrn from the 
 Civilians. — Prom Lord Hatherley's criticism of the remark 
 which fell from Lord Cottenham in Munro v. Munro, it is evi- 
 dent that the doctrine of Udny v. Udny was not influenced by 
 the views held by some of the Civilians, with regard to the 
 immutability of domicil of origin. So far as authority goes, it 
 seems to have rested entirely upon the cases in the English 
 Prize Courts ; and aside from direct authority, it seems to 
 have been tinctured very largely by the views then held in 
 Great Britain with regard to perpetual allegiance. 
 
 § 197. Id. Bomicil of Origin in the Early British Cases. — It is 
 noteworthy that in the earliest cases in the House of Lords, — 
 Bruce v. Bruce,^ Ommanney v. Bingham,^ and Bempde v. John- 
 stone,^ no special significance seems to have been attached to 
 domicil of origin. Indeed, Lords Thurlow and Loughborough, 
 who delivered the judgments in those cases, do not appear to 
 have arrived at any very clear conception of domicil of origin, 
 as it was then understood on the Continent, and subsequently 
 came to be understood in Great Britain. 
 
 1 2 Bos. & P. 229 note. 
 
 2 Robertson, Pers. Sue. pp. 152, 486. 
 ' 3 Ves. Jr. 198. 
 
 277 
 
§ 198.] THE LAW OF DOMICIL. [CHAP. IX. 
 
 The celebrated third rule of Lord Alvanley, in Someryille v. 
 Somerville,* evidently was not extracted from those cases, but 
 from the foreign authorities cited in the argument. It is the 
 first distinct recognition which we have in English jurispru- 
 dence of any special adhesiveness of domicil of origin, and that 
 of no artificial or technical kind, but one flowing naturally 
 from the usual conduct, habits, and feelings of men, and en- 
 tirely consistent with the complete obliteration of domicil of 
 origin upon the acquisition of a new domicil. 
 
 § 198. Id. TTdny v. XTdny and the British Prize Cases. — An 
 examination of the English Prize Cases shows that the doctrine 
 held in them goes even beyond that of Udny v. Udny. It is 
 clear that in the latter case their lordships meant to go no 
 further than to hold that domicil of origin reverts upon quit- 
 ting cum animo non revertendi the country in which domicil of 
 choice has been acquired. But the doctrine of Sir William 
 Scott, in The Indian Chief,^ requires only that the person 
 should " put himself in motion bona fide to quit the country 
 sine animo non revertendi ; " whereupon the " adventitious 
 character " gained by residence ceases, although he may be de- 
 tained by matters of business or the like, and may not actually 
 remove. In the case of The Snelle Zeylder,^ which Sir Wil- 
 liam Scott relied upon, and whicli was referred to by Lord 
 Clielmsford in Udny v. Udny, Mr. Curtissos, a British-born 
 subject, went to the Dutch settlement of Surinam in 1766, 
 and from thence to the island of St. Eustatius (also Dutch), 
 where he remained until 1776 ; from thence he went to Hol- 
 land to settle his accounts, with an intention, as was said, of 
 returning afterwards to England, to take up his final residence 
 there. He thus had passed from one part of the Dutch 
 dominions to another, but had not quitted Dutch territory, 
 and he did not return to England until 1781. While in Hol- 
 land, however, war broke out, and his ship and goods were 
 captured by the British and condemned in the Court of Ad- 
 miralty as Dutch property. Upon his return to England he 
 took an appeal, and his vessel and cargo were restored to 
 
 * 5 Ves. Jr. 750. See xwpra, § 114. = The Lords, April 25, 1783, 8 C. 
 1 3 C. Rob. Ad. 12. Eob. 21, in The Indian Chief, and note. 
 
 278 
 
§ 198.] REVERTER OF DOMICIL. [CHAP. IX. 
 
 him; the Lords of Appeal holding " that he was in itinere, — 
 that he had put himself in motion, and was in pursuit of his 
 original British character." The Ocean,^ was the case of a 
 vessel owned by a British-born subject who had settled in 
 Holland in trade, and who, upon the approach of hostilities, 
 arranged to return to England, and was only prevented from 
 so doing by the violent detention of all British subjects who 
 happened to be in the Dutch territories at the breaking out 
 of the war. Under these circumstances. Sir William Scott 
 held him. entitled to restitution. In The President,* the same 
 judge uses language to the effect that all that is necessary is 
 to show " some solid fact showing that the party is in the act 
 of withdrawing." 
 
 Such cases, if followed as authorities upon the general sub- 
 ject of domicil, are likely to introduce dobtrine fraught with 
 no little confusion and uncertainty in questions of status, per- 
 sonal succession, and the like.^ For example, if Mr. Curtissos 
 had died while in Holland, would his personal estate have 
 been distributable according to the laws of England ? Or 
 would the majority or minority of his children, if he had any, 
 have been determined by the laws of the latter country ? It 
 can liardly be thought so. 
 
 This line of discussion need not be pursued any further. 
 What has been said has been for the purpose of showing, first, 
 that, so far as Udny v. Udny rests upon authority at all, it 
 rests upon that of the British Prize Cases ; and, second, that 
 those cases go too far to be followed in ordinary cases of 
 domicil. Moreover, they are so mixed up with considerations 
 (particularly the matter of allegiance) peculiar to themselves, 
 and which do not apply to domicil in general, as to render 
 them wholly unsafe as guides in any cases except those in- 
 volving national character in time of war. Among others, 
 Dr. Lushington has, in Hodgson v. De Beauchesne,® warned 
 us against their use. He says : " This species of domicil is, 
 it is true, in one sense, domicil jure gentium, but in many 
 particulars it is governed by different considerations, and 
 
 8 5 C. Rob. 90. « 12 Moore P. C. C. 285. See also 
 
 4 Id. 277. Westlake, Priv. Int. L. 2d ed. p. 285, 
 
 6 See infra, § 387. pp. 39, 40, lat ed.; and supra, § 26. 
 
 279 
 
§ 199.] THE LAW OP DOMICIL. [CHAP. IX. 
 
 decisions belonging to it must be applied with great caution 
 to the questions of domicil independent of war." 
 
 § 199. Id. Objections on Principle to Udny v. Udny. — On prin- 
 ciple, however, there are many objections which can be urged 
 against the doctrine of Udny v. Udny ; the main one, besides 
 what has been already said in the chapter on Domicil of Origin, 
 being its extreme artificiality and the fact that it entirely loses 
 sight of the essentially voluntary character of domicil.^ It may 
 be said, and with great force, that the adherence of a domicil 
 of choice to a person after it has been abandoned would also 
 be involuntary and artificial. The necessity of imputing to a 
 person who is homeless in fact a domicil somewhere, compels 
 a resort to some artificial rule, it is true ; but it would seem 
 most consonant with the general principles of the subject to 
 restrict as far as possible the application of purely technical 
 fictions. And of all the fictions relating to domicil, that of 
 domicil of origin is the most highly technical ; for a person 
 may have a domicil of origin in a country without having 
 ever had the least semblance of a home there.^ 
 
 With respect to the remark of Lord Westbury, that if a 
 
 1 Wharton thus combats the doc- ties incapable of any hypothecation 
 trine of Udny v. Udny (Confl. of L. of their property without delivery of 
 § 60) : " The consequences in the possession, might subject them to their 
 United States would be serious should native municipal burdens, and throw 
 the [doctrine of the revival of the their estate upon their death into for- 
 original domicil when the elective dom- eign channels of succession. Certainly 
 icil has been abandoned] be main- consequences so hostile to the intention 
 tained. Foreigners come to us largely of the parties will not be arbitraiily 
 from countries subject to the modern forced. But abandoning an elective 
 Eoman law, and make their domicil at domicil, coupled with a return to the 
 their first port, often only to abandon it original domicil, though without the in- 
 fer another and then another until they tention of remaining, may revive that 
 reach a home which affords them a con- domicil ; and so a fortiori may an aban- 
 venient settlement. Should they be held, donment with an intention to return to 
 on each abandonment, to renew their such original domicil." 
 original domicil, their property and their ^ j^ 'VPalcot v. Botfield, Kay, 534, 
 persons would be placed under the con- Wood, V. C. (afterwards Lord Hath- 
 trol of a law utterly foreign to that which erley) says: " A person might be born 
 prevails in the country to which they in England, of parents whose domicil 
 emigrate. Abandoning a domicil in New was Scotch, and he might never after- 
 York, for instance, in order to seek one wards acquire a domicil of his own, and 
 as yet undetermined in the Northwest, thus might have a Scotch domicil with- 
 might revive the Eoman law of marital out ever having been in Scotland." See 
 community, might turn major children also the language of Lord Haiherley, su- 
 back into minors, might make the par- pra, § 193. 
 
 280 
 
§ 199.] REVERTER OF DOMICIL. [CHAP. IX. 
 
 natural-born Englishman domicil himself in Holland, and after- 
 wards break up his establishment there and remove, intending 
 never to return, it is absurd to suppose that his Dutch domicil 
 clings to him until he has " set up his tabernacle " elsewhere, 
 — it may be said that such a supposition is certainly no more 
 absurd than to suppose that his domicil of origin, which is 
 merely imputed to him by law, and into the constitution of 
 which no act or intention of his own has entered, should cling 
 and adhere to him in spite of every effort to rid himself of it, 
 should continue to follow him around the world, and notwith- 
 standing his fixed intention never to re-assume it, should 
 persistently control his capacities during his life and the distri- 
 bution of his estate after his death. We can suppose the 
 case of one removed in infancy from his domicil of origin by 
 his parents to another country, where they become naturalized 
 citizens, and where he grows to manhood, and where he him- 
 self (if such be the requirement of the law of that country) 
 on attaining his majority assumes citizenship. It does seem 
 unreasonable to hold that upon quitting this acquired domicil 
 with an intention of seeking an abode elsewhere, he should 
 be relegated for his status civilis to a country to which he 
 bears no allegiance, of which he may not have the slightest 
 recollection, and with which he may be connected by no ties 
 of kindred or association, — in short, a country with which his 
 only bond of connection is that his parents happened to be 
 domiciled there at the time of his birth. Or suppose a some- 
 what stronger case. The parents of A. are native-born Amer- 
 icans, and intending to set up a permanent abode in Russia 
 they journey thither. While in England, in itinere, A. is born. 
 Clearly his domicil of origin is American. His parents per- 
 manently establish themselves in Russia, and die there. A. 
 grows to manhood, marries, raises a family, and accumulates 
 property there. In middle life he quits that country, intend- 
 ing to settle in France, but dies in itinere in Germany. If 
 the doctrine of Udny v. Udny is of universal application, the 
 distribution of A.'s personal estate would be determined by 
 the laws of some American State upon whose soil he may 
 never have set foot, and with whose law he may be entirely 
 unacquainted. This is indeed an extreme case, but not an 
 
 281 
 
§ 200.] THE LAW OP DOMICIL. [CHAP. IX. 
 
 improbable one. In Udny v. Udny, Colonel Udnj was not 
 born at his domicil of origin ; and for anything which is to be 
 found in the books to the contrary, if he had grown up in 
 Spain and had never seen Scotland, the doctrine of their lord- 
 ships would have imputed to him a domicil in Scotland im- 
 mediately upon quitting England. 
 
 § 200. Westlake on Reverter. — Evidently impressed with 
 the harshness of such results, Westlake ^ has sought to pro- 
 vide against them (1) by assuming as the domicil of origin 
 (for the purpose of reverter) that domicil which the per- 
 son had when he first acquired the power of changing his 
 domicil for himself, and (2) by holding that reverter takes 
 place only when (a) the person has set out to resume his 
 domicil of origin, or (6) has abandoned his domicil of choice 
 without any sufficient intention being directed towards any 
 other country. The first position, however, is not only not 
 supported by the authorities, but is directly contradicted by 
 them ; the plain result of the cases being that the domicil of 
 origin of a person is that which attaches to him at birth, and 
 no other.^ The second position is equally untenable in view 
 of Udny v. Udny. For their lordships there hold substan- 
 tially that domicil of choice is an adventitious domicil which 
 ceases upon abandonment, — that it " may be abandoned sim- 
 pliciter, and that thereupon the original domicil simpliciter 
 reverts." Indeed, no other construction can be put upon the 
 language used in that case than that, upon the abandonment 
 of one acquired domicil in order to establish another, the 
 domicil of origin springs out of abeyance to fill up the gap 
 between the two. 
 
 Westlake^ assumes that "in the event of death in itinere the 
 last domicil is that towards which the person is journeying." 
 But suppose he does not die ? (Can death make any differ- 
 ence ?) Suppose, for example, a child is born of whom the 
 person in itinere is the father. By what law would the capa- 
 city for legitimation of such child be determined ? By that 
 of the country towards which the father is journeying ? 
 Clearly not. Then we are driven for an answer either to the 
 
 I Priv. Int. L. 2d ed. §§ 244, 245. s prfy. int. L. 2d ed.§ 244; and see 
 
 - See supra, § 105. supra, § 129 and note. 
 
 282 
 
§ 201.] EEVERTEE OP DOMICIL. [CHAP. IX. 
 
 law of the domicil of origin, or that of the lately abandoned 
 domicil. Suppose a wife die while her husband is thus in 
 itinere. Can it be that her testamentary capacity or the dis- 
 tribution of her personal property would be governed by the 
 law either of his intended domicil or of his domicil of origin ? 
 Suppose he be a Russian or an Italian who has become domi- 
 ciled in New York, and has married a New York woman wlio 
 has died while he is in itinere, — for example, to Canada, to 
 establish his domicil there ; or suppose that for some pur- 
 pose his personal capacity is called in question ; — is it not 
 more reasonable to determine It by the laws of a country 
 which he has once voluntarily chosen as his home, even 
 though he has abandoned it, than by the laws of a country 
 with which he may be connected only by ties which are 
 wholly artificial and rest in pure fiction ? 
 
 § 201. American Doctrine of Reverter. — In this country the 
 doctrine of reverter of domicil has been received substantially 
 as stated by Story ; namely, that domicil of origin re-attaches 
 upon (1) abandonment of domicil of choice, and (2) setting 
 out for the place of domicil of origin with intention to remain 
 there. Lowell, J., thus states it in Walker's case : ^ " The 
 general rule is that a domicil once acquired remains until a 
 removal has been effected to some other place with intent to 
 remain there. But there is an important exception in favor 
 of the native domicil, by which a mere removal from the new 
 and acquired home, with intent to return to that of origin, 
 revives the latter eo instanti." It is true that there have been 
 some dicta ^ in conflict with this view, but most of the cases 
 
 1 1 Lowell, 237 ; s. o. sub nom. Ex soon as he had finally abandoned the 
 
 jiiarte Wiggin, 1 Bank. Reg. 90. In acquired domicil by setting off on his 
 
 Goods of Bianchi, 3 Swab. & Tr. 16, journey to return to his domicil of 
 
 Sir C. Cresswell held similarly to the origin, the latter revived." 
 
 American cases, although it was not 2 j^ The Venus, 8 Cranch, 253, a 
 
 there necessary for him to go to the case involving national character in time 
 
 extent of the doctrine of Udny u. Udny. of war, Washington, J., says; "Na- 
 
 He said: " The deceased was originally tional character which a man acquires 
 
 domiciled in Genoa ; he then became by residence may be thrown off at 
 
 domiciled in the Brazils, and there is pleasure, by a return to his native coun- 
 
 no doubt of the fact that he died in try, or even by turning his back on the 
 
 itinere, as he was returning to Genoa country in which he has resided on his 
 
 to resume his permanent residence way to another. To use the language 
 
 there. Then it may be said that as of Sir W. Scott, it is au adventitious 
 
 283 
 
§ 201.J 
 
 THE LAW OP DOMICIL. 
 
 [chap. IX. 
 
 have followed Story either in words or in substance.^ More- 
 over, it is laid down in a large number, of cases, and may be 
 taken to be the consensus of American judicial opinion, that 
 domicil once acquired continues until another is acquired 
 facto et animo,* an exception being made in favor of reverter 
 of domicil of origin, as above stated. 
 
 character gained by residence, and which 
 ceases by non-residence. It no longer 
 adheres to the party from the moment 
 he puts himself in motion bona fide to 
 quit the country sine animo revertendi. 
 3 Eob. 17, 12. The Indian Chief." 
 It must be remembered, however, as 
 has been before pointed out, that differ- 
 ent presumptions arise in cases of na- 
 tional character and domicil in general. 
 Thus, for instance, greater stress is laid 
 in the former class of cases thaji in the 
 latter upon the mere fact of residence. 
 The tendency, however, of the later 
 American cases is to bring the doctrine 
 of residence as determinative of national 
 character more into conformity with the 
 general doctrine of domicU. Thus, for 
 instance, in the late cases of Mitchell v. 
 United States, 21 Wall. 350; Desmare v. 
 United States, 93 U. S. 605, national 
 character in time of war is put squarely 
 upon the ground of domicil. Gibson, 
 C. J., in Miller's Estate, 3 Eawle, 312, 
 319, says: " His domicil of origin, which 
 was at most but suspended, was instantly 
 revived by his resumption of the charac- 
 ter of auATnerican citizen, — even be- 
 fore the dissolution of his connection 
 with the foreign house. For an ac- 
 quired character, depending, as it does, 
 not on the existence of commercial re- 
 lations, but actual residence without a 
 present purpose of terminating or abridg- 
 ing it, is abandoned, for every purpose of 
 legal effect, the instant a step is taken 
 to abandon the country." But in this 
 ease (one of personal succession) the 
 party had returned to his domicil of 
 origin with the apparent intention of 
 remaining there. Marshall, C. J., in 
 Prentiss v. Barton, 1 Brock. 389 (Judi- 
 cial Citizenship), says that domicil of 
 origin "is recovered by any manifesta- 
 
 284 
 
 tion of a disposition to resume the na- 
 tive character ; perhaps by a surrender 
 of a new domicil. In fact it may be 
 considered rather as suspended than an- 
 nihilated." But he evidently had in 
 mind the decisions in cases of national 
 character, and particularly the views ex- 
 pressed by himself in The Venus (g. v. ), 
 where he was disposed to give great lati- 
 tude to a person residing in a foreign 
 country in the matter of throwing off 
 national character gained by residence. 
 In the Matter of Scott, 1 Daly, 534 
 (Naturalization), Daly, F. J., says : " It 
 [domicU of origin] continues until he 
 has acquired another, and revives if the 
 acquired domicil has been totally aban- 
 doned without any intention of acquir- 
 ing a new one, but not otherwise." For 
 this he cites Craigie v. Lewin, 3 Curteis, 
 435 ; but that case simply holds that 
 domicil of origin does not revive until 
 the acquired domicil has been aban- 
 doned. Moreover, in Scott's case, there 
 was a return to the domicil of origin. 
 
 8 The Francis, 1 Gall. 614; Johnson 
 V. Twenty-one Bales, Paine, 601 ; s. c. 
 Van Ness, 5 ; In re Walker, supra ; 
 Bank v. Balcom, 35 Conn. 351 ; Matter 
 of Wrigley, 8 Wend. 134, 140, per Wal- 
 worth, Ch. ; Eeed's Appeal, 71 Pa. St. 
 378 ; Mills v. Alexander, 21 Tex. 154. 
 See The Venus, as explained in the last 
 note. Eellar v. Baird, 5 Heisk. 39, 
 might seem to a certain extent to sup- 
 port the doctrine of Udny v. Udny. 
 
 * Mitchell V. United States, 21 Wall. 
 850 ; Desmare v. United States, 93 U. S. 
 605 ; In re Walker, stipra ; Littlefield 
 V. Brooks, 50 Me. 475 ; Gilman v. Gil- 
 man, 52 Me. 165 ; Jennison v. Hap- 
 good, 10 Pick. 77 ; Thomdike v. Bos- 
 ton, 1 Mete. 242 ; Opinion of the 
 Judges, 5 Met. 587 ; McDaniel v. King, 
 
§ 202.] 
 
 EEVERTER OP DOMICIL. 
 
 [chap. IX. 
 
 § 202. Doctrine of Udny v. trdny not held on the Continent. — 
 The doctrine of reverter as announced in Udny v. Udny is not 
 held at the present time upon the Continent.' Indeed, it may 
 
 5 Cush. 469 ; Shaw v. Shaw, 98 Mass. 
 158 ; Borland v. Boston, 132 Mass. 89 ; 
 Bank v. Balcom, 35 Conn. 351 ; Hege- 
 man a. Fox, 31 Barh. 475 ; Fiske v. 
 Railroad, 53 id. 472 ; Ames v. Duryea, 
 
 6 Lans. 155; Brown v. Ashbough, 40 
 How. Pr. 260; Isham v. Gibhons, 1 
 Bradf. 69 ; Clark & Miohener v. Likens, 
 2 Dutch. 207; Pfoutz v. Comford, 36 Pa. 
 St. 420 ; Reed's Appeal, 71 id. 378 ; 
 Hindman's Appeal, 85 id. 466 ; Bing- 
 gold V. Barley, 5 Md. 186 ; Pilson v. 
 Bnshong, 29 Gratt. 229 ; Lindsay v. 
 Murphy, 76 Va. 428 ; Goodwin v. Mc- 
 Coy, 13 Ala. 271 ; Glover v. Glover, 18 
 id. 367 ; Talmadge's Adm'r v. Tal- 
 madge, 66 id. 199 ; Church v. Cross- 
 man, 49 Iowa, 447 ; Kellar v. Baird, 5 
 Heisk. 39 ; Cole e;. Lucas, 2 La. An. 
 946 ; Mclntyre v. Chappel, 4 Tex. 187 ; 
 Hardy v. De Leon, 5 Tex. 211 ; Shep- 
 herd V. Cassidy, 20 id. 24 ; Gouhenant 
 V. Cockrell, id. 96 ; Contra Hicks o. 
 Skinner, 72 N. C. 1. 
 
 It is true that in many of the above 
 cases the change alleged was between 
 the place of origin and a new place, but 
 the language used by the various judges 
 is broad and general, and makes no 
 distinction in this respect between domi- 
 cil of origin and acquired domicU. In 
 Thorndikei;. Boston, Shaw, C. J., says : 
 " It is a maxim that every man must 
 have a domicil somewhere ; and also 
 that he can have but one. Of course it 
 follows that his existing domicil contin- 
 ues until he acquires another; and vice 
 versa, by acquiring a new domicil, he re- 
 linquishes his former one." And almost 
 this identical language is repeated in 
 many of the case.i. In Gilman v. Gil- 
 man, Davis, J., says: "In regard to 
 questions of citizenship and the dispo- 
 sition of property after death, every per- 
 son must have a domicil. For every 
 one is presumed to be the subject of 
 some government while living. And 
 the law of some country must control 
 
 the disposition of his property upon his 
 decease. It is therefore an established 
 principle of jurisprudence, in regard to 
 succession of property, that a domicil, 
 once acquired, continues until a new 
 one is established." In the opinion ren- 
 dered by the judges of the Supreme 
 Court of Massachusetts, upon the right 
 of students to vote at the place where 
 they are attending an institution of 
 learning, it is said : " Certain maxims 
 on this subject we consider to be well 
 settled, which afford some aid in ascer- 
 taining one's domicil. These are, that 
 every person has a domicil somewhere ; 
 and no person can have more than 
 one domicil at the same time for one 
 and the same purpose. It follows, from 
 these maxims, that a man retains his 
 domicil of origin till he changes it by 
 acquiring another ; and so each suc- 
 cessive domicil continues until it is 
 changed by acquiring another. And it is 
 equally obvious that the acquisition of a 
 new domicil does, atthe sameinstant, ter- 
 minate the preceding one." The reader 
 must be careful to distinguish between 
 the rule of evidence which presumes a 
 domicil once shown to continue until 
 the contrary is shown, and the rule of 
 law above stated. The rule of evidence 
 ceases to be applicable whenever aban- 
 donment of acquired domicil is shown, 
 without any reference to the substitu- 
 tion for it of a new domicil. The rule 
 of law is not satisfied without the acqui- 
 sition of a domicil elsewhere. The former 
 is entirely consistent with the doctrine of 
 Udny V. Udny, and is fully supported by 
 the British authorities; the latter is not. 
 1 Strictly speaking, it does not ap- 
 pear ever to have been held upon the 
 Continent. We have seen that in the 
 Roman Law the proper forum in which 
 a law suit could be brought was de- 
 termined, first, by the domicil of the 
 defendant, if he had one ; and secondly, 
 if he had no domicil, by his origo or 
 
 285 
 
§ 203.] 
 
 THE LAW OP DOMICIL. 
 
 [chap. IX. 
 
 be said to be as distinctively British, as it is the outgrowth of 
 the doctrine of perpetual allegiance, which Great Britain, last 
 of all the European nations, clung to. ^ut as it has been set- 
 tled by a solemn judgment of the House of Lords, it must remain 
 the British doctrine until overturned by act of Parliament. 
 
 § 203. Reverter will not be presumed. Burden of Proof 
 upon him alleging Reverter. — But the rule that the person 
 who asserts a change of domicil must prove it, applies as well 
 when the question is one of reverter as when it is one of the 
 acquisition of a domicil of choice. Eeverter, therefore, will 
 not be presumed, and the onus probandi rests upon him al- 
 leging it.i Mere intention to return to the domicil of origin 
 
 municipal citizenship. In other words, 
 if a person acquired a domicil, so long 
 as it existed, it fixed the place where 
 he might he saed ; hut if such domicil 
 was abandoned the forwnx of the person 
 reverted to the place of his origo. Sub- 
 stituting domicilium originis for origo, 
 and domicilium halitationis for domi- 
 cil, the same doctrine seems to have 
 prevailed among the modern civilians. 
 This will serve as an illustration of what 
 might possibly be considered a modified 
 form of reverter of domicil of origin ; 
 and it is not unlikely that this is what 
 was referred to by Lord Cottenham in 
 Munro v. Munro {supra, § 193). But it 
 is apparent that in stiictness the reverter 
 was rather one of forum than of domi- 
 cil. In the Roman Law, as has been 
 pointed out, origo and domicilium might 
 actively co-exist, especially with refer- 
 ence to municipal burdens ; and such 
 also was the doctrine of some of the 
 modern civilians with respect to domi- 
 ciliimi originis and domicilium hahita- 
 tionis. Thus, according to Bartolus, 
 "Originis domicilium est immntabile, 
 et ideo qui alibi habitat censetur habere 
 duo domicilia." See opinion of Grotius, 
 HoUandsche Consultatien, vol. iii. p. 
 528, Henry, For. L. p. 197. Domicil 
 of origin, therefore, was not, according 
 to this view, suspended or put in abey- 
 ance upon the acquisition of domicil of 
 choice, as was held in Udny v. Udny, 
 and, therefore, could not revert ; al- 
 
 286 
 
 though the application of domicil of ori- 
 gin to particular purposes (e.g., forum, 
 personal succession, etc.) was super- 
 seded by the application of domicil of 
 choice, when the latter existed distinct 
 from the former. For present conti- 
 nental opinion see supra, §§ 107, 108. 
 
 Savigny's view, (a) that a person may 
 be entirely without a domicil, and that 
 in such case the last domicil which he 
 possessed is to determine his forum and 
 his personal law, and (b) that dom- 
 icil of origin is to be resorted to only 
 when no previously existing self-elected 
 domicil can be discovered, is farthest of 
 all removed from the doctrine of Udny 
 V. Udny. And yet, although theoreti- 
 cally different, it is in its practical re- 
 sults the same as the American doctrine 
 above stated (see supra, §§ 81, 90). 
 
 1 Maxwell v. McClure, 6 Jur. (n. s.) 
 407 ; s. 0. sub nom. Donaldson v. Mc- 
 Clure, 20 D. (Sc. Sess. Cas. 2d ser. 1857) 
 307 ; Lord Advocate v. Lamont, 19 id. 
 779 ; Harvard College v. Gore, 6 Pick. 
 370. In Maxwell v. McClure, where the 
 person whose domicil was in question 
 was Scotch by origin, but had con- 
 cededly established an English domicil 
 and had returned to Scotland, Lord 
 Cranworth said ; " 'WTiere it is ad- 
 mitted on both sides that a particular 
 person has at one time a particular 
 domicil, the onus of proof, to be de- 
 duced from all the circumstances and 
 facts of the case, lies on the party who 
 
§ 204.J REVERTEB OP DOMICIL. [CHAP. IX. 
 
 at a future time is not sufficient,^ nor is mere return without 
 abandonment of the acquired domicil.^ 
 
 § 204. The Requisite Factum for Reverter. — The necessary 
 factum to accomplish reverter is quitting the country of the 
 acquired domicil ; that is, passing beyond its territorial limits. 
 This is illustrated by the decision of Sir Cresswell Cresswell in 
 Goods of Raffenel.^ In that case, an English woman by birth 
 married a Frenchman, and lived with him at Dunkerque until 
 his death. Several years after that event she left Dunkerque, 
 and went to Calais with her children and baggage, intending 
 to go to England, there to reside permanently. She embarked 
 upon a steamer bound for England ; but before it sailed she 
 was taken ill, and was obliged to reland at Calais, where she 
 remained for some months in the hope of recovering suffi- 
 ciently to bear the voyage to England. She continued, how- 
 ever, too ill to risk the voyage, and returned to Dunkerque, 
 where she died several months afterwards. Upon these facts 
 her domicil was held to be French ; Sir Cresswell Cresswell 
 remarking that he could "not think there was a sufficient 
 abandonment so long as the deceased remained within the 
 territory of Prance, her acquired domicil." In the Alabama 
 case of State v. Graham,^ where the petitioner for discharge 
 
 has to sliow that the domicil has heen ^ Stanley v. Bemes, 3 Hagg. Eccl. 
 
 changed. The presumption is that it 373 ; Attorney-General v. Fitzgerald, 
 
 continues till evidence has been given 3 Drew. 610 ; Johnson v. Twenty-oue 
 
 to show that it has heen changed." Bales, 2 Paine, 601; s. c. Van Ness, 5 ; 
 
 And the other lords who took part in State v. Graham, 39 Ala. 454. 
 
 the decision of the case used similar ° Maxwell v. McClure, 6 Jur. (n. s. ) 
 
 language. In Harvard College v. Gore, 407 ; AUardice v. Onslow, 34 L. J. Ch. 
 
 Parker, C. J., said: "Undoubtedly it 434; Craigie «. Lewin, 3 Curteis, 435 ; 
 
 was incumbent upon the appellees to The Friendschaft, 3 Wheat. 14 ; The 
 
 prove a change of domicil from that Ann Green, 1 Gall. 274 ; The Joseph, 
 
 which arose from birth, education, busi- id. 545 ; Burnham v. Rangeley, 1 
 
 ness, and civil and political relations, Woodb. & M. 7 ; Johnson v. Twenty- 
 
 for the burden of proof was upon them ; one Bales, supra ; Kemna v. Brock- 
 
 but this they have done in the most haus, 10 Biss. 128 ; Williamson v. 
 
 satisfactory manner, according to all Parisien, 1 Johns. Ch. 389 ; In re 
 
 rules which govern the subject. The Catharine Roberts's Will, 8 Paige, 
 
 onusprdbandi is therefore shifted, and Ch. 619; Russell v. Eandolph, 11 
 
 it has become the duty of the appellants Tex. 460; Mills o. Alexander, 21 id. 
 
 to show, according to the same rules, 164. 
 
 that this second domicil has been unin- i 3 Swab. & Tr. 49. 
 
 tentionally abandoned and the forum " 39 Ala. 464. 
 originis resumed." 
 
 287 
 
§ 207.] THE LAW OP DOMICIL. [CHAP. IX. 
 
 from military service appeared to have been prevented from 
 leaving Alabama, where he had acquired a domicil, and re- 
 turning to his native country, by the breaking out of the war 
 and want of funds, it was held that his acquired domicil 
 remained. These cases are in striiiing contrast with the Eng- 
 lish prize cases above referred to, but the doctrine contained 
 in them appears to be entirely sound when applied to domicil, 
 properly so called. 
 
 § 205. The Requisite Animus non Revertendi. — Abandon- 
 ment must clearly appear.^ A mere contingent intention not 
 to return to the acquired domicil is not sufficient; abandon- 
 ment must be final and complete ; ^ although a distant pos- 
 sibility of return to the place of the acquired domicil will not 
 prevent reverter.^ 
 
 § 206. The Transit to Domicil of Origin need not be Direct. — 
 Even upon the American theory of reverter, " it is of no con- 
 sequence that the return home is not immediate, or by the 
 shortest road. If the fact of final abandonment and the inten- 
 tion to return to the old coiicur, the domicil is changed from 
 the time that the new is actually left." ^ Thus in Walker's case, 
 in which the facts were that W., who was born in Boston and 
 had become domiciled in California, left California intending 
 not to return but to go to Boston and remain there, Lowell, J., 
 held that his domicil of origin had reverted ; although he jour- 
 neyed from San Francisco to Boston by way of Prance, remain- 
 ing in that country for eleven months. It is true that Judge 
 Lowell relied upon Mr. Curtissos' case as an authority for this 
 position, but it doubtless can be sustained on principle, and 
 it is to be noted that while in the former case Mr. Curtissos 
 remained within the Dutch dominions, W. had actually passed 
 beyond the territorial limits of the State of California. 
 
 § 207. Quasi-National Domicil the Subject of Reverter. — Oth- 
 erwise as to Municipal Domicil. — It was said, in the Connecti- 
 cut case of Bank v. Balcom,^ that the doctrine of reverter 
 
 ^ Craigie v, Lewin, supra. ' Attorney-General v. Pottinger, 30 
 
 '■' Cases cited in § 203, note 3, and L. J. (Exc.) 284, per Bramwell, B. 
 
 White V. Brown, 1 Wall. Jr. C. Ct. 217 ; ^ In re Walker, supra. 
 
 In re Walker, 1 Lowell, 237 ; Matter i 35 Conn. 351. 
 
 of Scott, 1 Daly, 534. 
 
 288 
 
§ 208.] REVERTER OP DOMICIL. [OHAP. IX. 
 
 does not apply to quasi-n&tional domlcil; but this position 
 was not necessary to the. decision of the case, and is inadmis- 
 sible in view of the abundant authority to the contrary .^ 
 
 There is no reason to suppose that the principle of reverter 
 is applicable to municipal domicil. 
 
 § 208. Acquired Domicil not the Subject of Reverter. — 
 The principle of reverter, at least in its technical sense, is 
 not applicable to acquired domicil. It is easy to under- 
 stand that fewer circumstances may be required to show 
 the re-acquisition of a former domicil of choice than tlie 
 acquisition of an entirely new one. But it cannot thence 
 be concluded that anything short of the complete factum 
 of transfer of bodily presence to a former domicil of choice 
 will suffice to re-acquire it. Since Udny v. Udny, there can 
 be no doubt of the position of the British courts upon this 
 point. 
 
 But in this country there have been some expressions used 
 which might seem to give some countenance to such doctrine. 
 In The Venus,^ a prize case, Washmgton, J., said : " Having 
 once acquired a national character by residence in a foreign 
 country, he ought to be bound by all the consequences of it, 
 until he has thrown it off, either by an actual return to his 
 native country, or to that where he was naturalized, or by 
 commencing his removal, bona fide and without an intention 
 of returning." This language is open to several different 
 constructions, and by no means definitely asserts reverter of 
 acquired domicil, at least without actual return ; but it is evi- 
 dent that the learned judge was somewhat confusing national 
 character and allegiance, and such may have been his thought. 
 Moreover, it is possible to entertain such a view of reverter 
 of national character, without putting it distinctly and en- 
 tirely upon the ground of domicil. It was, however, appar- 
 ently to meet this doctrine, that Story in his woris on the 
 Conflict of Laws ^ laid down the following : " A national 
 character, acquired in a foreign country by residence, changes 
 when the party has left the country animo non revertendi, and 
 
 2 Udny V. Udny, L. E. 1 Soh. App. Baird, 5 Heisk. 39. Such also is Story's 
 441 ; In re Walker, supra ; Reed's opinion, Confl. of L. § 47. 
 Appeal, 71 Pa. St. 378 ; Kellar v. » 8 Crauch, 253, 280. 2 § 48. 
 
 19 289 
 
208.] 
 
 THE LAW OF DOMICIL. 
 
 [chap. IX. 
 
 is on his return to the country where he had liis antecedent 
 domicil. And especially, if he be in itinere to his native 
 country with that intent, liis native domicil revives while 
 he is yet in transitu; for the native domicil easily reverts." 
 This language has been repeated in the Texas case of Mills 
 V. Alexander ; ^ but, so far as the writer is aware, the doctrine 
 of reverter of acquired domicil has never been distinctly held 
 in any case.* 
 
 8 21 Tex. 154. 
 
 * Unless, indeed, the ease of Leg Trois 
 Frferes, Stew. Ad. 1, decided by the Nova 
 Sootia Court of Vice-Admiralty, may 
 be so construed. The facts were that 
 a Frenchman domiciled in the United 
 States left this country, intending to re- 
 turn to France. But during his voyage 
 he learned from a passing vessel that 
 war had broken out between France and 
 England ; whereupon he immediately 
 abandoned his intention of going to 
 France, and turned back to the United 
 States, animo manendi. The vessel 
 with his goods on board was captured 
 before arriving here. Held (per Dr. 
 Croke, judge), 1st, that his native 
 French character reverted from the 
 time he put his foot on board the 
 
 290 
 
 vessel to return to France ; and 2d, 
 that, upon turning back to the United 
 States, he became rc-invested with his 
 former American character. Several 
 observations upon this case are, how- 
 ever, pertinent : 1st, that the question 
 involved was one of national character 
 in time of war, and that therefore, al- 
 though the case may have been rightly 
 decided, it does not hence follow that 
 the same doctrine would be applied 
 when the question is purely one of 
 domicil ; and 2d, that the person 
 whose national character was involved 
 had not actually reached France, and 
 hence a distinction may be taken be- 
 tween his case and that of a person 
 who has in fact, as well ais in 
 fiction, regained his domicil of origin. 
 
§ 209.] 
 
 DOMICIL OP MARRIED WOMEN. 
 
 [chap, X. 
 
 CHAPTER X. 
 
 DOMICIL OP PARTICULAR PERSONS, — MARRIED WOMEN. 
 
 § 209. General Doctrine. — As a general rule, it has been uni- 
 versally held in all civilized countries, and in all ages, wherever 
 the subject of domicil has been discussed, that, upon marriage, 
 the domicil of the wife merges in that of the husband, and con- 
 tinues to follow it throughout all of its changes, so long as the 
 marriage relation subsists.^ This is put by various jurists upon 
 
 1 AVarrender v. Warrender, 2 CI. & 
 F. 488 ; Dolphin v. Robins, 7 H. L. 
 Cas. 35,0 ; Geils v. Geila, 1 Macq. H. 
 L. Cas. 254 ; Re Daly's Settlement, 25 
 Beav. 456 ; Whitcomb v. Whitcomb, 
 2 Curteis, 351 ; Chichester v. Donegal, 
 1 Add. Eccl. 5 ; Shaekell v. Shaokell, 
 cited in Whitcomb i>. Whitcomb ; Ni- 
 boyet 0. Niboyet, L. R. 4 P. D. 1 ; 
 Maghee v. McAllister, 3 Ir. Ch. 604 ; 
 Gillis V. Gillis, Ir. R. 8 Eq. 597 ; Tul- 
 loh V. Tulloh, 23 D. (So. Bess. Cas. 
 2d ser. 1861) 639 ; Penna v. Eavenel, 
 21 How. 103 ; Barber v. Barber, id. 
 682 ; Bumham v. Rangeley, 1 Woodb. 
 & M. 7 ; Kemna v. Brockhaus, 12 Biss. 
 128 ; Bennett v. Bennett, Deady, 299 ; 
 Poppenhausen v. India-Rubber Comb 
 Co., 11 Am. L. Rec. 696; Knox v. 
 WaldoboroLigh, 3 Greenl. 455 ; Greene 
 V. Windham, 13 Me. 225 ; Greene v. 
 Greene, 11 Pick. 410 ; Harteau v. Har- 
 teau, 14 id. 181 ; Hood v. Hood, 11 
 Allen, 196 ; Mason v. Homer, 105 Mass. 
 116 ; Ditson v. Ditson, 4 R. I. 87 ; 
 Danbury v. New Haren, 5 Conn. 584 ; 
 Guilford v. Oxford, 9 id. 321 ; Bank v. 
 Balcom, 35 id. 351 ; Hunt v. Hunt, 72 
 N. Y. 217 ; Vischer v. Vischer, 12 
 Barb. 640 ; Lipscomb v. N. J. R. R. 
 & Trans. Co. 6 Lans. 75 ; Paulding's 
 Will, 1 Tuck. 47 ; Brown v. Lynch, 2 
 Bradf. 214 ; Haokettstown Bank v. 
 Mitchell, 28 N. J. (Law) 516 ; Bald- 
 
 win V. Flags, ^3 id. 495 ; McPherson 
 V. Housel, 13 id. (Eq.) 35 ; Dougherty 
 V. Snyder, 15 S. & R. 84 ; Dorsey b, 
 Dorsey, 7 Watts, 349 ; School Directors 
 V. James, 2 W. & S. 568 ; Hollister v. 
 Hollister, 6 Pa. St. 449 : Bishop v. 
 Bishop, 30 id. 412 ; Ensor v. Graff, 43 
 Md. 391 ; Smith v. Moorehead, 6 Jones 
 Eq. 369 ; Colburn v. Holland, 14 Rich. 
 Eq. 16 ; Harkins v. Arnold, 46 Ga. 
 656 ; HanbeiTy v. Hanberry, 29 Ala. 
 714 ; McCoUuni v. White, 23 Ind. 43 j 
 Jenness v. Jenness, 24 id. 355 ; Davis 
 V. Davis, 30 111. 180 ; Freeport v. The 
 Supervisors, 40 id. 495 ; Babbett v. 
 Babbett, 69 id. 277 ; Swaney v. Hutch- 
 ins, 13 Neb. 266 ; Maguire v. Maguire, 
 7 Dana, 180; McAfifeei). Kentucky Uni- 
 vei-sity, 7 Bush, 135 ; Johnson v. John- 
 son, 12 id. 485 ; Williams v. Saunders, 
 5 Cold. 60 ; Johnson v. Turner, 29 
 Ark. 280 ; Dugat i: Markham, 2 La. 
 R. 35 ; Succession of Christie, 20 La. 
 An. 383 ; Succession of McKenna, 23 
 id. 369 ; Republic v. Young, Dallam, 
 464 ; Russell v. Randolph, 11 Tex. 460; 
 Lacey v. Clements, 36 id. 661 ; Kashaw 
 V. Kashaw, 3 Cal. 312 ; Dow v. Gould, 
 31 id. 629 ; Voet, Ad Pand. 1. 5, t. 1, 
 no. 95 ; Donellus, De Jure Civili, 1. 17, 
 c. 12, p. 978, no. 20 ; Zangerns, De 
 Except, pt. 2, 0. 1, no. 56 et seq. and 
 no. 96 ; Burgundus, Ad Consuet. Fland. 
 Tract. 2, no. 34 ; Lauterbach, De Domi- 
 291 
 
§ 209.] THE LAW OP DOMICIL. [CHAP. X, 
 
 various grounds, — namely, (a) the theoretical identity of hus- 
 band and wif e,2 (J) the subjection of the latter to the former ,3 and 
 (c) the duty of the wife to make her home with her husband.* 
 It must be apparent, at least as regards the constitution of 
 the original matrimonial domicil, that, in most cases, the ele- 
 ment of intention on the part of the wife is not wanting. It 
 " is not a mere fiction ; it is a literal and absolute fact. A 
 woman when she marries a man does in the most emphatic 
 manner elect to make his liome hers ; " ^ or as Cotton, L. J., 
 expressed it in Harvey v. Farnie : ® " When the lady [an Eng- 
 lish woman] married a Scotchman, she consented and agreed 
 that her domicil from that time forth should be that of her 
 husband." So that the domicil which a wife receives upon 
 marriage usually is in a certain sense a domicil of choice, 
 although not technically so. As regards subsequent changes, 
 however, her will is subordinate to that of her husband, and, 
 within reasonable limits, he is allowed to select for himself 
 and his wife such domicil as his interests, his tastes, his con- 
 venience, or, possibly, under certain circumstances, even his 
 caprice may suggest.^ And, whatever may be the ground of 
 
 cilio, c. 3, § 73; Leyser, Medit. ad Pand. * Warrender v. Wairender, supra; 
 
 vol. ii. Spec. 72 ; Gliick, vol. vi. §§ 512, Hunt v. Hunt, supra; Holllster v. 
 
 514; Savigny, System, etc. § 353 (Guth- HoUister, supra; Bishop, Marr. & Div. 
 
 rie's trans. 100) ; Bar, § 29 ; Pothier, § 728 ; Demolombe, Cours de Code 
 
 Intr. auxCout.d'Orleans, no.lO;Merlm, Napoleon, nos. 357, 358; Gliick, vol. 
 
 Repertoire, t. 8, verb. Doni. § 5 ; Calvo, vi. §§ 512, 514. 
 
 Manuel, § 198; Id. Diet. verl. Dom. ; * Hannen, Pres. in Harvey r. Farnie, 
 
 Burge, For. & Col. L. vol. i. p. 35 ; L. R. 5 P. D. 153. 
 
 Westlake, Priv. Int. L. 1st ed. no. 42, ^ L. R. 6 P. D. 35 (on appeal), 
 
 rule 8 ; Id. 2d ed. § 241 ; Phillimore, The expression quoted is perhaps too 
 
 Dom. no. 40 et seq. ; Id. Int. L. vol. broad, inasmuch as the parties at the 
 
 iv. no. 74 et seq. ; Dicey, p. 104 ; time of the marriage can hardly be pre- 
 
 Fraser, Husband & Wife, p. 867; Story, sumed to have in contemplation any 
 
 Coufl. of L. § 46 ; Wharton, Confl. of domicil other than the common domicil 
 
 L. § 43. See also the authorities cited about to be established ; which is, of 
 
 in the following notes. course, in most cases, the present domi- 
 
 " Barber u. Barber, supra, per Daniel, oil of the husband. 
 
 J. ; Harteau v. Harteau, supra ; Hunt ' What are the limits within which 
 
 V. Hunt, supra ; Dougherty v. Snyder, the husband may exercise this power 
 
 supra; Dorseyw. Dorsey, jjKjom; School is a question involved in no little diffi- 
 
 Directors v. James, supra ; Jenness v. culty. Where there is a difference of 
 
 Jenness, supra; Pothier, loc. cit. opinion between husband and wife with 
 
 * Pothier, loo. cit. ; Story, Confl. of respect to the location of their common 
 
 L. § 46 ; Colburn v. Holland, sztpra; home, it is clear that under ordinary 
 
 Barber v. Barber, supra, per Wayne, J. circumstances the will of the wife must 
 292 
 
§ 209.] 
 
 DOMICIL OP MARRIED WOMEN. 
 
 [chap. X. 
 
 the rule, the presumption of law that husband and wife dwell 
 together is so strong, that proof to the contrary, either of fact 
 
 give way to that of the husband ; and 
 it is clear also that great latitude will 
 be allowed him in the exercise of his 
 discretion. And when the husband 
 has thus selected a new home, the wife 
 is bouud to accompany him to it. If 
 she fails to do so she will be guilty of 
 desertion. Fraser, in his work on Hus- 
 band and Wife {p. 867), takes the broad- 
 est possible ground upon this subject. 
 He says : " The wife is bound to accom- 
 pany the husband to any part of the 
 world to which he chooses to wander. 
 The mere circumstance of unhealthy 
 climate, the inconvenience of travelling, 
 the bad health or the weak constitution 
 of the wife, will not free her from the 
 obligation under which she lies of ac- 
 companying her husband." In Hair v. 
 Hair, 10 Rich. Ecj. 163, Dargan, Chancel- 
 lor, used this language : " The husband 
 has the right, without the consent of 
 the wife, to establish his domicil in any 
 part of the world, and it is the legal 
 duty of the wife to follow his fortunes 
 wheresoever he may go. The defendant, 
 in the exercise of his undoubted pre- 
 rogative, had determined to make his 
 domicil in the paiish of Bienville, in 
 the State of Louisiana, and wished his 
 wife to accompany him. She, prefer- 
 ring the society of her mother and her 
 relatives, refused to go, — in opposition 
 to his wishes, his importunate solicita- 
 tions, his earnest entreaties. Consider- 
 ing the relative duties and obligations 
 of husband and wife as defined by law, 
 who, under the circumstances, is guilty 
 of desertion? The wife assuredly." In 
 this case the husband had before mar- 
 riage promised not to remove the wife 
 from the State nor from the neighbor- 
 hood of her mother. Held, that the 
 promise created a moral obligation only, 
 and was in law a nullity. In Babbitt 
 V. Babbitt, 69 111. 277, the facts were, 
 that the parties were living together 
 in Illinois until the removal of the 
 husband to Michigan, the wife refus- 
 ing to accompany him, although re- 
 
 quested so to do. In a suit for alimony 
 by the wife against the husband, Breese, 
 C. J., said: "It was appellant's clear 
 right to make Michigan his residence, 
 and it was certainly the duty of his 
 wife to accompany him there, which 
 she was strongly invited to do. We 
 understand the domicil of the husband 
 is the domicil of the wife, and it is 
 there she can claim and receive the pro- 
 tection and maintenance of her hus- 
 band. He was not required to ask 
 her consent to remove to Michigan. 
 In this respect he was the master of 
 his own actions, and it was her duty 
 as » faithful and obedient wife to ac- 
 company him there. ... It may em- 
 phatically be said of her, she is living 
 separate and apart from her husband 
 by her own fault, and in total disregard 
 of the vow she made when wedded." 
 On the other hand may be noticed the 
 extreme case of Powell v. Powell, 29 
 Vt. 148. The facts were that the hus- 
 band and wife having removed together 
 from the State in which they had for- 
 merly been domiciled, to another State, 
 and the husband having determined to 
 return to their former place of abode, 
 the wife refused to accompany him, or 
 afterwards to join him there, assigning 
 for a reason that she was xmwilling "to 
 live with him near his relatives." The 
 court held that these facts did not con- 
 stitute a wilful desertion by the wife 
 of the husband within the meaning of 
 the Vermont Statute. Kedfield, C. J., 
 said : " While we recognize fully the 
 right of the husband to direct the af- 
 fairs of his own house, and to determine 
 the place of the abode of the family, 
 and that it is in general the duty of the 
 wife to submit to such determination, 
 it is still not an entirely arbitrary power 
 which the husband exercises in these 
 matters. He must exercise reason and 
 discretion in regard to them. If there 
 is any ground to conjecture that the 
 husband requires the wife to reside 
 where her health or her comfort will be 
 
 293 
 
§ 209.] 
 
 THE LAW OP DOMICIL. 
 
 [chap. X. 
 
 or of intention, will not be admitted in any but a few excep- 
 tional cases hereafter to be noticed. 
 
 jeoparded, or eveu where she seriously 
 believes such results will follow which 
 will almost of necessity produce the 
 effect, and it is only upon that ground 
 that she separates from him, the court 
 cannot regard her desertion as continued 
 from mere wilfulness. . . . And in the 
 present case, as the wife alleges the 
 vicinity of the husband's relatives as a 
 reason why she cannot consent to come 
 to Milton to live with him, and as every 
 one at all experienced in such matters 
 knows that it is not uncommon for the 
 female relatives of the husband to create, 
 either intentionally or accidentally, dis- 
 quietude in the mind of the wife, and 
 thereby to destroy her comfort and 
 health often, and as there is no at- 
 tempt here to show that this is a simu- 
 lated excuse, we must treat it as made 
 iu good faith ; and, if so, we are not 
 prepared to say that she is liable to be 
 divorced for acting upon it." In Bishop 
 V. Bishop, 30 Pa. St. 412, Thompson, J., 
 said: "Would the facts disclosed by 
 the witness justify the court in coming 
 to a conclusion favorable to the com- 
 plainant ? They were : that the par- 
 ties were married in England ; after a 
 time removed to Ireland ; returned 
 again to England, and the libeUant, 
 on account of ill health, it is said, 
 determined to emigrate to America ; 
 up to this point of time they had lived 
 together, and, for aught we know, lived 
 happily ; he determined on going ; she 
 would not consent to go ; he left her, 
 and emigrated. Is wilful and malicious 
 desertion a natural and necessary in- 
 ference from such a state of facts ? The 
 terms imply free election, to live with 
 or not live with the party deserted, and 
 determined upon against the marital ob- 
 ligation, impelled thereto by wilfulness 
 and malice. The choice must be free, 
 excepting so far as it may be controlled 
 by these evil impulses. Can this be 
 inferred by any fair process of reason- 
 ing from the facts sworn lo here ? The 
 woman had for years followed the for- 
 
 294 
 
 tunes of her husband,— faithful in every- 
 thing, as the testimony shows, as well 
 as his anxiety to have her accompany 
 him to this country evinces, if he were 
 sincere in it. At this point, however, 
 and in the face of this great trial, she 
 fails ! The leaving home and country, 
 the dangers of a long ocean-voyage, 
 the privations of a stranger in a strange 
 land, may have overmastered her strong- 
 est desire to follow his footsteps further, 
 and determined her to cling to her na- 
 tive country. This is the evidence and 
 the fair inference from it, extending to 
 her the legal presumption of innocence 
 and honesty, until the contrary be made 
 to appear, and does not necessarily, and 
 in opposition to all other inferences, 
 establish wilful and malicious deser- 
 tion." This case, however, was de- 
 cided upon other grounds. Agnew, J., 
 iu Colvin v. Reed, 55 Pa. St. 375, said : 
 " If a wife enjoying here the comforts 
 of home, friends, and refinement, should 
 refuse to follow the whim or caprice 
 of her husband in the western wilds, or 
 to encounter the perils and hardships 
 of a journey to the mines of California, 
 on what principle of that natural justice 
 which regulates interstate law shall the 
 husband's new abode draw his wife's 
 domicil thither ? Clearlj', no State right 
 to regulate the statits of its own citizens 
 can justify this." Similar is the lan- 
 guage of Zabriskie, Chancellor, in Boyce 
 V. Boyce, 23 N. J. Eq. 337 : "The wife 
 is bound to follow her husband when 
 he changes his residence, even without 
 her consent, provided the change be 
 made by him in the bona fide exercise 
 of his power, as the head of the family, 
 of determining what is best for it. Eveu 
 this may have its limits, and it may 
 be questioned whether a husband has a 
 right to require his wife to leave all her 
 kindred and friends and follow him to 
 Greenland or Africa, or even to Texas, 
 Utah, or Arizona. Clearly, he has no 
 right to take her to such places as a 
 punishment for her disobedience, ex- 
 
§ 210.] DOMICIL OP MAEEIED WOMEN. [CHAP. X. 
 
 § 210. Roman Law. — In the Roman law the effect of mar- 
 riage was, from the husband to the wife, divini et humani juris 
 communicatio} She was raised or lowered to the station of 
 her husband, and participated in his honors and dignities, or 
 lost hers if she married beneath her. Thus, on the one hand, 
 a plebeian woman, by marriage with a senator, acquired sen- 
 atorial rank, and became clarissima; and on the other, a 
 patrician woman, upon marriage with a plebeian, lost her no- 
 bility and became plebeian. And in the same manner, upon 
 marriage, the wife exchanged her domicil for that of her hus- 
 band. " Mulieres honore maritorum erigimus, genere nobili- 
 tamus, et forum ex eorum persona statuimus ; et domicilia 
 mutamus. Sin autem minoris ordinis virum postea sortitae 
 fuerint ; priore dignitate privatse, posterioris mariti sequentur 
 conditionem." ^ 
 
 It was apparently upon the theoretical identity of person, 
 and the subjection of the wife to the marital power of the 
 husband, that the identity of domicil was put. But the cel- 
 ebration of a valid marriage was a necessary condition. 
 Therefore a woman did not change her domicil by the mere 
 betrothal, — " Ea, quae disponsa est, ante contractas suum non 
 mutat domicilium," ^ — nor by an invalid marriage.* The 
 
 travagance, or ungovernable temper." Lave no authority to criticise it." And 
 
 It may well be doubted, however, he adds, that in such case it is the duty 
 
 whether it would not be the duty of the of the wife to follow the husband to his 
 
 wife to follow her husband to Texas, new home. After all, however, it must 
 
 Utah, or Arizona, in case he, in the not be too readily assumed that the 
 
 reasonable exercise of his discretion, identity of the wife's domicil with that 
 
 determines to remove there for a reason- of the husband depends entirely upon 
 
 able purpose, such as engaging in busi- the duty of the former to dwell with 
 
 ness or the like. A more moderate, the latter. See infra, §§ 226, 227. 
 
 and probably the correct, doctrine is ^ Dig. 23, t. 2, 1. 1. 
 
 that stated by Brewster, J., in Cutler ^ Code 12, 1. 1, 1. 13. This passage 
 
 V. Cutler, 2 Brewst. 611, a case of di- appears in the same language, but with 
 
 vorce on the ground of desertion : "A slightly inverted order, in Code 10, 
 
 husband cannot, from mere whim or t. 39, 1. 9. See also, on the subject of 
 
 caprice, remove his wife beyond the the domicil of the wife, the following 
 
 comforts of home, friends, and refine- passages, which are given supra, § 5, 
 
 ment, to take her beyond the jurisdic- note 1 ; Dig. 5, t. 1, 1. 65 ; Id. 23, t. 2, 
 
 tion of their former domicil ; but he 1. 5; Id. 50, t. 1, 1. 38, § 3. 
 
 has the undoubted right to change his ' Dig. 50, t. 1, 1. 32; see also Voet, 
 
 home as often as his business, his com- Ad Pand. 1. 5. t. 11, no. 95; and Zaa- 
 
 fort, or health may require ; and, so gerus, De Except, pt. 2, c. 1, no. 61. 
 
 long as his conduct in this particular * Dig. 50, t. 1, 1. 37, § 2. " Muli- 
 
 is free from the taint of cruelty, we eres, quae in matrimonium se dederint 
 
 295 
 
§ 211.] 
 
 THE LAW OP DOMICIL. 
 
 [chap. 
 
 French Code ^ provides : " A married woman has no other 
 domicil than that of her husband." And in construing this 
 provision, together with another, — namely, that a " major 
 interdit shall have his domicil with his tutor," ^ some French 
 jurists hold that the wife of such interdit has her domicil 
 with the tutor of her husband.'^ 
 
 § 211. Betrothal. Arnott v. Groom. — If the doctrine of 
 the Roman law, that a woman does not change her domicil 
 by mere betrothal, needed any judicial affirmance or recogni- 
 tion to incorporate it into the modern law, it may be consid- 
 ered as having received such afiSrmance in the Scotch case of 
 Arnott V. Groom,^ where it was held that a Scotch lady, resid- 
 ing in England under circumstances which would not of them- 
 selves be considered sufficient to constitute domicil there, did 
 not gain an English domicil by the fact of becoming engaged 
 to be married to a domiciled Englishman. 
 
 non legitimum, non ibi muneiibus fun- 
 gendas, unde mariti earum sunt, scien- 
 dum est ; sed unde ipsae ortse sunt." 
 This language might appear equally ap- 
 plicable to liability to municipal bur- 
 dens because of citizenship ; but it is 
 plain that throughout the whole pas- 
 sage, of which this is a part, Callis- 
 tratus is speaking of incolx and not 
 of Hves. See also Voet, loc. cit. and 
 Zangerus, De Except, pt. 2, c. 1, no. 59. 
 The latter says : " Quando ergo dicimus 
 uxorem sequi domicilium mariti id 
 piimo intelligere oportet de vera, non 
 etiam putatira uxore, de justa quse duc- 
 ta est secundum juris civilis leges et 
 ritum ; non etiam de inJHsta contra has 
 leges et ritum ducta, cum neo uxor 
 dicatur." 
 
 5 Art. 108. "La femme marine n'a 
 point d'autre domicile que celui de son 
 mari." 
 
 « Id. 
 
 ' Demolombe, Cours de Code Napo- 
 leon, t. 1, no. 363 ; Duranton, Cours 
 de Droit Fran9ais, t. 1, no. 371 ; Mar- 
 cad^, Cours de Code Civil, art. 108, 
 no. 1 ; Mass^ et Verg^ sur Zachariae, 
 t. 1, § 89, no. 7, p. 123. Contra, Ri- 
 chelot, Principes de Droit Civil Fran- 
 cais, t. 1, no. 244 ; Aubry et Kau, sur 
 
 296 
 
 Zachariae, t. 1, § 143 ; no. 7, p. 580. 
 Where, however, the wife has been ap- 
 pointed tutrice of her interdit hus- 
 band, his domicil follows hers in re- 
 versal of the general rule. Demolombe, 
 loc. eit. ; Duranton, t. 1, no. 366 ; 
 Mersier, Traite, etc., des Actes de I'Etat 
 Civil, no. 139. 
 
 1 9 D. (Sc. Sess. Cas. 2d ser. 
 1846), 142. The Lord Ordinary (Lord 
 Wood) seems to have put his decision 
 (which was affirmed) upon the trae 
 ground. He said: "Nm^oes the mat- 
 rimonial engagement indicate intention 
 to change, for it is a mere intention to 
 change de/uturo, and that has no effect 
 till it is actually accomplished; and it is 
 fallacious to imagine that an engagement 
 to marry an English merchant at some 
 future time is equivalent to an engage- 
 ment to settle permanently in England." 
 Lord FuUerton, in delivering his opinion 
 in favor of adherence, said: " Had there 
 been anything to connect the removal of 
 a residence in England with the intended 
 marriage, — if, for instance, the fact had 
 been that the marriage was to be imme- 
 diately contracted with a gentleman 
 fixed in England, and that the lady had 
 gone to England in contemplation of the 
 marriage, — there might have been some 
 
§ 212.] DOMICIL OP MARRIED WOMEN. [CHAP. X. 
 
 § 212. Invalid Marriage. — How far a valid marriage is 
 necessary to give the woman the domicil of the man is not 
 settled by modern authority. If the supposed marriage is for 
 any reason invalid, it is clear that the domicil of the latter 
 could not attach to the former by way of legal fiction, — by 
 mere operation of law, — as in the case of a valid marriage. 
 But if, in pursuance of such supposed marriage, the woman 
 goes to dwell in the home of her supposed husband, is her 
 domicil thereby changed ? The affirmative view was held in 
 a New Hampshire settlement case,^ in which the facts were 
 that the woman was insane at the time of her marriage and 
 afterwards, and that the marriage had, in another proceeding, 
 been declared to be null and void by reason of her insanity. 
 Nevertheless the court held that the mere fact that the mar- 
 riage was void did not prevent her from acquiring a settle- 
 ment at the same place with her supposed husband, if she 
 had stifficient reason and understanding to choose her place 
 of residence ; and in so deciding appears to lay down the 
 same principle for cases of domicil generally. That this doc- 
 trine would be extended to cases of national and quasi-national 
 domicil is. by no means clear. In a Massachusetts case ^ it 
 was held that a woman who married an insane man, and 
 whose marriage was therefore void, did not follow his settle- 
 ment. But, although the report of the case does not state 
 specifically, it appears that she continued to reside in the 
 town in which she was dwelling at the time oi the marriage. 
 The case seems therefore to be an authority only for the posi- 
 
 ground for connecting her removal to tinned presence in England and engage- 
 England with the prospect of perma- ment to marry there sufficient to consti- 
 nently remaining there. But here the tute an English domicil. From this 
 two circumstances have no connection case we may reason a /orfa'ori, as indeed 
 with each other. It is not said that any it would be clear apart from all author- 
 time was fixed for the marriage ; the ity, that if the lady had not at the time 
 parties are said to have been engaged, of or subsequently to the engagement 
 but an engagement is a term of indefi- resided in any manner in England, a 
 nite continuance ; and the statement is change of domicil would not have re- 
 quite consistent with the supposition suited from her mere engagement to 
 that she was to return and resume de marry an Englishman. 
 facto her domicil in Scotland." Lords i Concord v. Eumney, 45 N. H. 423. 
 Boyle (President) and Mackenzie con- " Middleborough v. Rochester, 12 
 curred with Lord FuUerton in adhering. Mass. 363. 
 Lord Jeifrey dissented, considering con- 
 
 297 
 
§ 213.] THE LAW OP DOMICIL. [CHAP. X. 
 
 tion that an invalid marriage does not by mere operation of 
 law confer upon the woman the domicil of the man. 
 
 § 213. Wife receives Domicil of Husband instantly upon Mar- 
 riage. — The domicil of the husband becomes that of the wife 
 instantly upon the celebration of the marriage, and it is of 
 no consequence that she has not yet arrived at the place of 
 his domicil.i Indeed, the change takes place all the same, 
 although she has never arrived there. Says Pothier : 2 "As 
 the wife, from the instant of the celebration of the marriage, 
 passes under the power of her husband, she ceases, to a 
 certain extent, to have propriam personam, and she becomes 
 one and the same person with her husband. She loses from 
 that instant her domicil ; that of her husband becomes hers, 
 and she becomes from that day subject to the personal stat- 
 utes of the place of that domicil, although she has not yet 
 arrived there." James, L. J., in Harvey v. Parnie,^ remarks : 
 " If a domiciled foreigner comes here for the purpose of taking 
 a wife from this country, the moment the marriage is con- 
 tracted, the moment the vinculum exists, then the lady be- 
 comes to all intents and purposes of the same domicil as the 
 husband, and all rights and consequences arising from the 
 marriage are to be determined by the law of that which by 
 the actual contract of marriage becomes the domicil of both 
 parties, exactly to the same extent as if they had both been 
 originally of the foreign country. It seems to me that there is 
 no qualification to that rule. A wife's home is her husband's 
 home ; a wife's country is her husband's country ; a wife's 
 domicil is her husband's domicil ; and any question arising 
 with reference to the status of those persons is, according 
 to my view, to be determined by the law of the domicil of those 
 persons." And Cotton, L. J., said in the same case : " When 
 a woman, domiciled in one country, marries in that country 
 a man domiciled in another country, her domicil at once be- 
 
 1 This assumes, of course, that the statement in the text must, of course, he 
 
 law regulating the marriage does not modified. But such is not, in general at 
 
 require for the completion of the mar- least, the modern law. See Zangerus, 
 
 riage tie deductio in domum. If the De Except, pt. 2, o. 1, nos. 60-64. 
 applicatory law demands as an essential = i^tr. aux Gout. d'OrWans, no. 10. 
 element of the marriage the arrival of " l, jj, g p j)_ gj 
 the wife at the home of the husband, the 
 
 298 
 
§ 215. J DOMICIL OP MAREIED WOMEN. [CHAP. X. 
 
 comes that of her husband. That, I think, cannot be dis- 
 puted or doubted. I know of no case which throws a doubt 
 upon it." 
 
 Demolombe * illustrates the principle thus : " A woman, at 
 present domiciled at Lyons, marries at Lyons a man domi- 
 ciled at Paris. From the day of the celebration of the mar- 
 riage, the domicil of the woman is in strict law transferred to 
 Paris ; and even though she should die at Lyons without ever 
 having been at Paris, her domicil would be at Paris, and her 
 succession would be opened there." 
 
 § 214. Domicil of Wife follows that of Husband whether or 
 not she accompanies him to his New Place of Abode. — In 
 the same manner a domicil of the husband acquired after the 
 marriage becomes that of the wife, notwitlistanding her fail- 
 ure to arrive at the place where it is fixed.^ The factum of a 
 change of bodily presence, which is an indispensable element 
 for the acquisition of domicil by an independent person, is not 
 a necessary condition of a change of the wife's domicil, so 
 long as it depends upon that of the husband.^ 
 
 § 215. Wife cannot select a Domicil for herself, even with the 
 Consent of her Husband. — The wife is, except in the cases 
 hereafter mentioned, powerless to select a domicil for herself, 
 either with or without the consent of her husband.^ So long 
 as there exists no ground for legal separation she cannot law- 
 
 ' Cours de Code Napoleon, t. 1, blish, but which she holds of her hus- 
 
 no. 357. hand." 
 
 1 Republic v. Young, Dallam, 464; i WarrendertJ.Warrender, 2C1. & F. 
 Eussell V. Randolph, 11 Tex. 460 ; La- 433 ; Dolphin v. Eobins, 7 H. L. Cas. 
 cey V. Clements, 36 id. 661; Succession 390 ; Be Daly's Settlement, 25 Beav. 
 of Christie, 20 La. An. 383 ; Succession 456 ; Bennett v. Bennett, Deady, 299 ; 
 of McKenna, 23 id. 369 ; Johnson u. Greene v. Windham, 13 Me. 235; 
 Turner, 29 Ark. 280 ; Burlen v. Shan- Greene v. Greene, 11 Pick. 410 ; Hood 
 non, 115 Mass. 438. v. Hood, 11 Allen, 196 ; Jackson v. 
 
 2 Pothier adds to the passage last Jackson, 1 Johns. 424; Paulding's 
 quoted: " This is not contrary to what Will, 1 Tuck. 47 ; Yule v. Yule, 2 
 will he hereafter said, that the transla- Stock. 138 ; Cox v. Cox, 19 Ohio St. 
 tion of domicil from one place to another 502 ; Davis v. Davis, 30 111. 180 ; Ma- 
 may be effected only when one has ar- guire v. Maguire, 7 Dana, 180 ; Sander- 
 rived there; for this principle has place son v. Ralston, 20 La. An. 312 ; Re- 
 with regard to the proper domicil which public v. Young, Dallam, 464 ; and see 
 a person proposes to establish for him- generally the authorities cited supra, 
 self and not with regard to that domicil § 209, note 1. 
 
 which the wife does not herself estah- 
 
 299 
 
I 216.] THE LAW OP DOMICIL. [CHAP. X. 
 
 fully dwell apart from him against his will, and much less 
 can she establish a separate domicil. Nor can she establish a 
 domicil for herself, even when dwelling apart from him with 
 his express consent. Said Lord Brougham, in the leading case 
 of Warrender v. Warrender : " It is admitted on all hands 
 that, in the ordinary case, the husband's domicil is the wife's 
 also; that, consequently, had Lady Warrender been either 
 residing really and in fact with her husband, or been acci- 
 dentally absent for any length of time, or even been by some 
 family arrangement, without more, in the habit of never going 
 to Scotland, which was not her native country, while he lived 
 generally there, no question could have been raised upon the 
 competency of the action as excluded by her non-residence. 
 For actual residence — residence in point of fact^ — signifies 
 nothing in the case of a married woman, and shall not, in 
 ordinary circumstances, be set up against the presumption of 
 law that she resides with her husband. Had she been absent 
 for her health, or in attendance upon a sick relation, or for 
 economical reasons, how long soever this separation de facto 
 might have lasted, her domicil could never have been changed. 
 Nay, had the parties lived in different places, from a mutual 
 understanding which prevailed between them, the case would 
 still be the same. The law could take no notice of the fact, 
 but must proceed upon its own conclusive presumption, and 
 hoM her domiciled where she ought to be, and where, in all 
 oMinary circumstances she would be, — with her husband." 
 
 § '^16. Id. even though a Formal Deed of Separation has 
 been executed. — Nor does it matter that a formal deed of 
 separation has been executed. This point was fully discussed 
 in Warrender v. Warrender ; and in Dolphin v. Robins it was 
 assumed. In the former case, the distinguished judge already 
 quoted said : " Does the execution of a formal instrument, 
 recognizing such an understanding, make any difference in 
 the case ? . . , What is the legal value or force of this kind 
 of agreement in our law? Absolutely none whatever, — in 
 any court wliatever, — for any purpose whatever, save and 
 except one only, — the obligation contracted by the husband 
 with trustees to pay certain sums to the wife, the cestui que 
 trust. In no other point of view is any effect given by our 
 300 
 
§ 216.] DOMICIL OP MARRIED WOMEN. [CHAP. X. 
 
 jurisprudence, either at law or in equity, to such a contract. 
 No damages can be recovered for its breach, — no specific 
 performance of its articles can be decreed. No court, civil or 
 consistorial, can take notice of its existence. So far has the 
 legal presumption of cohabitation been carried by the com- 
 mon-law courts, that the most formal separation can only be 
 given in mitigation of damages, and not at all as an answer 
 to an action for criminal conversation, the ground of which is 
 the alleged loss of comfort in the wife's society; and all the 
 evidence that can be adduced of the fact of living apart, and 
 all the instruments that can be produced binding the husband 
 to suffer the separate residence of his wife, — nay, even where 
 he has for himself stipulated for her living apart, and laid her 
 under conditions that she should never come near him, — all 
 is utterly insufficient to repel the claim which he makes for 
 the loss of her society without doing any act, either in court 
 or in pais, to determine the separation or annul the agree- 
 ment. In other words, no fact and no contract, no matter 
 in pais, and no deed executed, can rebut the overruling pre- 
 sumption of the law that the married persons live together, 
 or, which is the same thing, that they have one residence, — 
 one domicil. In the contemplation of the common law, then, 
 they live together and have the same domicil." And Lord 
 Lyndhurst fully concurred in this doctrine, using as strong, 
 if not stronger, language.^ 
 
 1 " It is fully established by all the aration amounts to nothing more than a 
 
 papers produced in the case, and was mere permission to one party to live 
 
 without hesitation admitted by counsel separate from the other, — not a binding 
 
 on both sides, in the preliminary argu- obligation in the eye of the law, — and 
 
 ment, that Sir George Warrender has there the matter rests. It confers no 
 
 been a domiciled resident in Scotland release of the marriage contract on 
 
 during the whole period, from hia mar- either party, and neither can thereupon 
 
 riage up to the commencement of the presume to violate it. The letter of 
 
 suit and to the present time. This is Sir George Warrender cannot alter the 
 
 the basis of the whole case, and it there- principle of law. The strongest arti- 
 
 fore clearly follows that Lady Warren- cles of separation may be drawn up and 
 
 der became, as his wife, similarly dom- signed with full acquiescence of husband 
 
 icUed in Scotland ; for the principle of and wife, yet he may sue her and she 
 
 the law of both countries equally recog- may sue him notwithstanding. It is at 
 
 nizes the domicil of the husband as that the most a mere temporary arrangement, 
 
 of the wife. No point of law is more a permission to live elsewhere ; but the 
 
 clearly established ; that point being legal domicil remains as it was. One 
 
 established, the subsequent deed of sep- may pledge himself not to claim or in- 
 
 301 
 
§ 217.] THE LAW OP DOMICIL. [CHAP. X. 
 
 § 217. Wife divorced, either a Vinculo or a Mensa et Thoro, 
 ruay establish a Domicil for herself. — It is clear without au- 
 thority, that a divorce a vinculo matrimonii, placing as it does 
 the wife again in the position of feme sole, restores to her the 
 power to establish for herself such domicil as she desires.^ 
 But the effect of a judicial decree of separation, short of an 
 absolute severing of the matrimonial tie, requires some fur- 
 ther discussion. Such decree, if pronounced by a court of 
 competent jurisdiction, removes at least several of the grounds 
 upon which the general rule of identity of domicil between 
 husband and wife rests. It is no longer her duty to dwell 
 with him, and, whatever mutual property rights may remain 
 under the laws of the various States and countries, she is no 
 longer sub potestate viri, but is freed from the control which 
 has been abused, and is empowered to select such a residence 
 and such associations as will be promotive of her safety and 
 comfort. It would seem clear on principle, therefore, that, 
 when the law has by its solemn judgment recognized the fact 
 that they dwell apart, and has decreed that they be permitted 
 to do so, it should no longer continue the fiction of identity of 
 domicil between husband and wife upon the mere fiction of 
 
 stitute a. suit for conjugal rights j but evolution of the present doctrine is an 
 
 he cannot he hound by any such pledge, interesting one, hut it is wholly heyond 
 
 for it is against the inherent condition the scope of this work to state it at 
 
 of the married state, as well as against length. It is sufficient to say that it is 
 
 public policy. It is said that Lord El- now thoroughly settled,that not only will 
 
 don, in the case of Tovey v. Lindsay, in a court of equity interfere by injunction 
 
 this House, threw some doubt on the to restrain either husband or wife from 
 
 principle, and seemed inclined to give maintaining a proceeding for restitution 
 
 effect to those deeds of separation ; but of conjugal rights in violation of a cove- 
 
 I am of opinion, on the authority of nant in a deed of separation, but since 
 
 cases deliberately decided by that noble the Judicature Acts, the Court of Divorce 
 
 lord himself, that the deed of separa- will itself allow such covenant as an 
 
 tion here cannot affect the domicil, or equitable defence in favor of either the 
 
 any other condition inherent in the rela- husband or the wife. See particularly 
 
 tion of husband and wife, or be any bar "Wilson v. Wilson, 1 H. 1,. Cas. 538 ; 
 
 to the husband's suit." s. c. 5 id. 40 ; Hunt v. Hunt, 4 De G. 
 
 But the language of their lordships, F. & J. 221 ; Besant ti. Wood, L. E. 12 
 
 so far as it bears upon the effect of a deed Ch. D. 605 ; Marshall v. Marshall, L. R. 
 
 of separation upon the right of either 5 P. D. 19. 
 
 party to sue for restitution of conjugal i The point was, however, directly 
 
 rights, does not express the law as it is held in Bennett v. Bennett, Deady, 299. 
 
 at present understood and practised in See also Wharton, Confl. of L. § 46. 
 England. The history of the gradual 
 
 302 
 
§ 219.] DOMICIL OF MARRIED WOMEN. [CHAP. X. 
 
 identity of person. And the tendency, of late years, toward 
 liberality with respect to the rights and capacities of married 
 women, would seem to point in the same direction. There 
 has, however, been some difference of opinion upon the sub- 
 ject. Pothier ^ thus lays down the French law prior to the 
 adoption of the Code Civil : " Whenever a wife is separated 
 from the habitation" [of her husband] "by a judgment which 
 is not suspended by an appeal or. opposition, she may estab- 
 lish for herself any domicil which becomes proper for her." 
 Such was also the view of President Bouhier.* 
 
 § 218. Domicil of a Femme Separee de Corps under the French 
 Code CivU. — The Code Civil lays down the law as to the dom- 
 icil of a married woman in the general terms above given, 
 and makes no reference to the case of a woman giparSe de 
 corps ; and this has led several French jurists ^ to hold that 
 in such case the separated wife retains the domicil of her 
 husband a;nd can establish no other for herself. But in the 
 opinion of the great majority ^ this is simply a casus omissus 
 in the Code, and upon principle, the wife being freed from the 
 personal control of her husband, and being no longer under 
 the duty of dwelling with him, may select and set up for her- 
 self a domicil wherever she sees fit. 
 
 § 219. Power of Wife divorced a Mensa et Thoro to establish 
 a Domicil for herself. British Authorities. — In England the 
 question has undergone some discussion ; and, although it is 
 not yet settled by any authoritative decision, the weight of 
 
 2 Int. aux Cout. d'Orl^ans, no. 10 ; de I'ifetat des Personnes, t. 1, p. 121 ; 
 
 also Du Mariage, no. 522. Vallette sur Proudhon, t. 1, p. 244; 
 
 ' Cout du Bourgogne, c. 22, p. 447, Marcade, Cours de Code Civil, art. 
 
 ed. 1742. 108, no. 1 ; Aubry et Eau sur Zacha- 
 
 1 See particularly, Merlin, Repertoire, rise, t. 1, § 143; Mass6 ct Verge 
 verb. Dom. § 5; Dalloz, EecueU Alpha- sur Zacharise, t. 1, § 89, note 4 ; Lau- 
 betique, t. 6, verb. Dom. no. 9 ; Zacha- rent, Principes de Droit Civil Franjais, 
 rise, Handbuch dea Franzbzischen Civil- t. 2, no. 85 ; Eichelot, Principes de 
 rechts, 1. 1, p. 280. Droit Civil Franjais, t. 1, no. 243 ; 
 
 2 Demolombe, Cours de Code Kapo- Boncenne, Th6orie de la Proc^d. Civ. 
 l^on, t. 1, no. 358 ; Duranton, Cours t. 2, p. 203; Mersier, no. 137; Du Caur- 
 de Droit Franjais, t. 1, no. 365; De- roy, Bonnier et Roustain, Commen- 
 mante, Cours Anyl. t. 1, no. 132 Ms ; taire, etc. du Code, t. 1, no. 174 ; Blon- 
 Toullier, Le Droit Civil Franjais, t 2, deau, Kevue de Droit Fran^ais et fitran- 
 no. 773 ; Delvincourt, Cours de Code ger, t. 1, p. 650 et seq. 
 
 Civil, t. 1, p. 251 ; Proudhon, Traits 
 
 303 
 
§ 220.] THE LAW OF DOMICIL. [CHAP. X. 
 
 opinion appears to be in favor of allowing a wife divorced a 
 mensa et thoro to gain a domicil for herself. In Williams v. 
 Dormer,^ it was held that a wife living apart from her hus- 
 band, under a sentence of judicial separation, is not legally 
 residing with her husband, for the purpose of founding juris- 
 diction against her in a suit of nullity of marriage. The real 
 question, however, although the language of the judge, Sir 
 John Dodson, is applicable generally to domicil, was one of 
 inter-diocesan residence ; and although the case has been cited 
 as an authority upon the question now under discussion, how 
 far it would be considered such by the English courts in cases 
 of national or g-Masi-national domicil is not certain. Westlak e ^ 
 thinks it would not be considered an authority in favor of the 
 power of the wife to change her domicil, upon the ground that 
 jurisdiction in suits of nullity of marriage is not held in Eng- 
 land to turn upon domicil. But in the first edition of his 
 work he relies upon it. Sir Robert J. Phillimore, however, 
 in Le Sueur v. Le Sueur ,3 refers to it as an authority on the 
 general subject of domicil. 
 
 § 220. Id. id. — In Dolphin v. Robins,^ in the House of 
 Lords, the power of a woman divorced a mensa et thoro to es- 
 tablish a domicil for herself was discussed by counsel, but as 
 no such divorce or its equivalent was shown, the point was not 
 passed upon by the House. Lord Cranworth, however, while 
 disclaiming intention to give any authoritative utterance upon 
 the subject, remarked : " The question where a person is dom- 
 iciled is a mere question of fact ; where has he established his 
 permanent home? In the case of a wife, the policy of the 
 law interferes, and declares that her home is necessarily the 
 home of her husband ; at least it is so prima facie. But 
 where, by judicial sentence, the husband has lost the right to 
 compel the wife to live with him, and the wife can no longer 
 insist on his receiving her to partake of his bed and board, 
 the argument which goes to assert that she cannot set up a 
 home of her own, and so establish a domicil different from 
 that of her husband, is not to my mind altogether satisfac- 
 
 1 2 Robertson, 505. 8 L. E. 1 P. D. 139. 
 
 2 Priv. Int. L. 2d ed. § 241 ; but i 7 H. L. Cas. 390. 
 see 1st ed. p. 42. 
 
 304 
 
§ 221.J DOMICIL OP MARRIED WOMEN. [CHAP. S. 
 
 torj. The power to do so interferes with no marital right 
 during the marriage, except that which he has lost by the 
 divorce a mensa et thoro. She must establish a home for her- 
 self, in point of fact ; and the only question is, supposing that 
 home to be one where the laws of succession to personal prop- 
 erty are different from those prevailing at the home of her 
 husband, which law, in case of her death, is to'prevail? Who, 
 when the marriage is dissolved by death, is to succeed to her 
 personal estate ; those entitled by the law of the place where, 
 in fact, she was established, or those where her husband was 
 established." Lord Kingsdown declined to concur in the 
 expressions of Lord Cranworth, and considered " it to be a 
 matter, whenever it shall arise, entirely open for the future 
 determination of the House." Whether his refusal to concur 
 was based upon a difference of opinion, or a desire to leave 
 the question unprejudiced by judicial utterances, does not 
 clearly appear. The Lord Chancellor (Campbell) also left 
 the question open, and Lords Brougham, Wensleydale, and 
 Chelmsford, who heard the argument, took no part in the 
 decision of the case. 
 
 Of English text-writers, Phillimore,^ Westlake,^ and Foote* 
 hold the affirmative, while Dicey ^ considers the question an 
 open one. 
 
 In Scotland it has been held, that upon a judicial decree of 
 separation from bed and board, the domicil of the wife ceases 
 to follow that of the husband.^ 
 
 § 221. Id. American Authorities. — In Barber V. Barber ,1 in 
 the Supreme Court of the United States, the precise point was 
 
 2 Dom. p. 29, no. 47 ; Id. Int. L. * 21 How. 582. In this case the 
 
 vol. IT. no. 81. facts were, that, husband and wife heing 
 
 ' Priv. Int. L. 1st ed. p. 42 ; Id. domiciled in the State of New York, 
 
 •2d ed. § 241. were by a court of competent jnrisdio- 
 
 * Priv. Int. Jur. p. 17. tion there divorced a mensa et thoro, and 
 
 5 Dom. p. 105. In Geils v. Geils, an allowance of alimony was made. 
 
 1 Maoq. 254 (s. c. id. 36), Lord St. Subsequently the husband moved to 
 
 Leonards, Ch., refused to give an opin- Wisconsin, the wife remaining in New 
 
 ion as to whether an English divorce York, and alimony being in arrears, the 
 
 a mensa et thoro severed the wife's dom- wife, by a next friend, filed a bill in 
 
 icil from that of the husband. See also equity in the District Court of the 
 
 Le Sueur ■». Le Sueur, supra, - ■ United States for the District of Wis- 
 
 ' Allison V. Catley, 1 D. (Sc. Seas, consin, for the recovery of it. The main 
 
 Cas. 2d ser. 1839) 1025. question involved was whether husband 
 
 20 305 
 
§ 221.] 
 
 THE LAW OP DOMICIL. 
 
 [chap. X. 
 
 raised and decided in the afErmative, and the same doctrine 
 has been held in the New York courts.^ In Pennsylvania, it 
 
 and wife divorced a mensa et thoro can 
 become citizens of different States so 
 as to give jurisdiction in suits between 
 them to the United States courts. This 
 question was resolved in the affirmative, 
 Wayne, J., delivering the opinion of the 
 court, in which he said : " The Consti- 
 tution requires, to give the courts. of the 
 United States jurisdiction, that the 
 litigants to a suit should ' be citizens of 
 different States.' The objection in this 
 case is, that the complainant does not 
 stand in that relation to her husband, 
 the defendant ; in other words, it is a 
 denial of a wife's right, who has been 
 divorced a mensa et thoro, to acquire for 
 herself a domiciliation in a State of this 
 Union different from that of her hus- 
 band in another State, to entitle her to 
 sue him there by her next friend, in a, 
 court of the United States having equity 
 jurisdiction, to recover from him ali- 
 mony which he has been adjudged to 
 pay to her by a court which had juris- 
 diction over the parties and the subject- 
 matter of divorce, where the decree was 
 rendered. We have already shown, by 
 many authorities, that courts of equity 
 have a jurisdiction to interfere to en- 
 force a decree for alimony, and by cases 
 decided by this court ; that the juris- 
 diction of the courts of equity of the 
 United States is the same as that of Eng- 
 land, whence it is derived. On that 
 score, alone, the jurisdiction of the 
 court in the case before us cannot be 
 successfully denied. But it was urged 
 by the learned counsel who argued this 
 cause for the defendant, that husband 
 and wife, although allowed to live sep- 
 arately under a decree of separation a 
 mensa et thoro, made by a State court 
 having competent jurisdiction, are still 
 so far one person, whUe the married 
 relation continues to exist, that they 
 cannot become at the same time citizens 
 
 of different States, within the meaning 
 of the Federal Constitution, and there- 
 fore the court below had no jurisdiction. 
 It was also said, for the purpose of bring- 
 ing suits for divorces, they may acquire 
 separate residences in fact; but this is 
 an exception founded in necessity only, 
 and that the legal domicil of the wife, 
 until the marriage be dissolved, is the 
 domicil of the husband, and is changed 
 with a change of his domicil. Such, 
 however, are not the views which have 
 been taken in Europe generally, by its 
 jurists, of the domicil of a wife divorced 
 a mensa et thoro. They are contraiy, 
 too, to the generally received doctrine 
 in England and the United States upon 
 the point. In England it has been de- 
 cided, that where the husband and 
 wife are living apart, under a judicial 
 sentence of separation, the domicil of 
 the husband is not the domicil of the 
 wife ( English Law and Equity Reports, 
 voL ix. 598, 2Kobertson, 545). When 
 Mr. PhUlimore wrote his treatise upon 
 the law of domicil, he said he was not 
 aware of any decided case upon the 
 question of the domicil of a wife di- 
 vorced a mensa et thoro, hut there can 
 he little doubt that in England, as in 
 France, it would not he that of her hus- 
 band, hut the one chosen for lierself after 
 the divorce. In support of his opinion, 
 he cites Pothier's Intr. aux Cout. p. 4 ; 
 Marcade in his Commentary upon the 
 French Code, voL i, p. 287; The French 
 Code, tit. Ill, art. 108; the Code 
 Civile of Sardinia ; and Cochin's Argu- 
 ment in the Duchess of Holstein's case, 
 (Euvres, t 2, p. 223. Mr. Bishop, in 
 his Commentaries on the Law of Mar- 
 ria^ and Divorce, has a passage so 
 appropriate to the point we are discuss- 
 ing, that we wiU extract it entire. It is 
 of the more value, too, because it com- 
 prehends the opinions entertained by 
 
 2 Hunt V. Hunt, 72 N. 
 Paulding's Will, 1 Tuck. 47. 
 
 306 
 
 Y. 217 ; Vischer v. Vischer, 12 Barb. 640 ; 
 
§ 221.J 
 
 DOMICIL OP MARRIED WOMEN. 
 
 [chap. X. 
 
 has been held ^ that a woman divorced a menm et thoro might 
 acquire in her own right a settlement entitling her to pauper 
 
 eminent American jurists and judges 
 in respect to the domicil of a wife di- 
 vorced a mensa et tharo. He says, in 
 discussing the jurisdiction of courts 
 where parties sought a divorce abroad 
 for causes which would have been insuf- 
 ficient at home, that 'it was necessary 
 to settle a preliminary question, namely, 
 whether for the purpose of a divorce 
 suit the husband and wife can have 
 separate domioils; that the general doc- 
 trine is familiar, that the domicil of the 
 wife is that of the husband. But it 
 will probably be found, on examination, 
 that the doctrine rests upon the legal 
 duty of the wife to follow and dwell 
 with the husband wherever he goes. If 
 he commits an offence which entitles 
 her to have the marriage dissolved, she 
 is not only discharged thereby immedi- 
 ately, and without a judicial determina- 
 tion of the question, from her duty to 
 follow and dwell with him, but she 
 must abandon him, or the cohabitation 
 will amount to a condonation, and bar 
 her claim to the remedy. In other 
 words, she must establish a domicil 
 of her own, separate from her husband, 
 though it may be, or not, in the same 
 judicial locality as his. Courts, how- 
 ever, may decline to recognize such 
 domicil in a collateral proceeding — that 
 is, a proceeding other than a suit for a 
 divorce. But where the wife is plain- 
 tiff in a divorce suit, it is the burden 
 of her application that she is entitled, 
 through the misconduct of her husband, 
 to a separate domicil. So when partus 
 are already living under a judicial sep- 
 aration, the domicil of the wife does not 
 follow that of the husband.' (Section 
 728). Chief Justice Shaw says, in Har- 
 teau V. Harteau, 14 Pick. 181, 185, the 
 law will recognize a wife as having a 
 separate existence, and separate inter- 
 ests, and separate rights, in those cases 
 where the express object of all proceed- 
 ings is to show that the relation itself 
 
 ought to be dissolved, or so modified as 
 to establish separate interests, and es- 
 pecially a separate domicil and home. 
 Otherwise the parties, in this respect, 
 would stand upon a very unequal foot- 
 ing, it being in the power of the hus- 
 band to change his domicil at will, but 
 not in that of the wife. The cases 
 which were cited.against the right of a 
 wife, divorced from bed and board, to 
 choose for herself a domicil, do not 
 apply (Donegal v. Donegal, in 1 Ad- 
 dam's Ecclesiastical Rep. pp. 8, 19). 
 That of Shackell v. Shaokell, cited in 
 Whitcomb v. Whitcomb (9 Curteis' Ec- 
 clesiastical Rep. p. 352), are decisions 
 upon the domicil of the wife, when 
 living apart from her husband by their 
 mutiial agreement, but not under de- 
 crees divorcing the wife from the bed 
 and board of the husband. The lead- 
 ing case under the same circumstances 
 is that of Warrender v. Warrender, 
 (9 Bligh, 103, 104). In that case, Lord 
 Brougham makes the fact that the hus- 
 band and wife were living apart by 
 agreement, and not by a sentence of 
 divorce, the foundation of the judg- 
 ment. The general rule is that a vol- 
 untary separation will not give to the 
 wife a different domiciliation in law from 
 that of her husband. But if the husband, 
 as is the fact in this case, abandons their 
 domicil and his wife, to get rid of all 
 those conjugal obligations which the 
 marriage relation imposes upon him, 
 neither giving to her the necessaries nor 
 the comforts suitable to their condition 
 and his fortune, and relinquishes alto- 
 gether his marital control and protec- 
 tion, he yields up that power and 
 authority over her which alone makes 
 his domicil hers, and places her in a 
 situation to sue him for a divorce a 
 mensa et thoro, and to ask the court hav- 
 ing jurisdiction of her suit to allow her 
 from her husband's means, by way of 
 alimony, a suitable maintenance and 
 
 s Williamsport v. Eldred, 84 Pa. St. 429. 
 
 307 
 
§ 221.J 
 
 THE LAW OP DOMICIL. 
 
 [chap. S. 
 
 support. The authority of these cases, together with the 
 great liberality of the various States in investing a wife di- 
 
 support." Taney, C. J., and Camp- 
 bell and Daniel, JJ., dissented, the last 
 named filing a dissenting opinion, in 
 which he said : " With respect to the 
 authority of the courts of the United 
 States to adjudicate upon a controversy 
 and between parties such as are pre- 
 sented by the record before us. Those 
 courts, by the Constitution and laws of 
 the United States, are invested with 
 jurisdiction in controversies between 
 citizens of different States. In the exer- 
 cise of this jurisdiction, we are forced 
 to inc^uire, from the facts disclosed in 
 the cause, whether, during the existence 
 of the marriage relation between these 
 parties, the husband and wife can be re- 
 garded as citizens of different States ? 
 Whether, indeed, by anj' regular legal 
 deduction consistent with that relation, 
 the wife can, as to her civil or political 
 status, be regarded as a citizen or per- 
 son ? By Coke and Blackstone it is said : 
 'That by marriage, the husband and 
 wife become one person in law ; that is, 
 the very being or legal existence of the 
 woman is suspended during the mar- 
 riage, or at least is incorporated or con- 
 solidated into that of the husband, 
 under whose wing and protection she 
 performs everything. Upon this princi- 
 ple of union in husband and wife de- 
 pend almost all the rights, duties, and 
 disabilities that either of them acquire 
 by the marriage. For this reason a 
 man cannot grant anything to his wife, 
 nor enter into a covenant with her, for 
 the grant would be to suppose her sep- 
 arate existence, and to covenant with 
 her would be only to covenant with him- 
 self ; and therefore it is generally true 
 that all compacts made between hus- 
 band and wife, when single, are voided 
 by the intermarriage ' (Co. Lit. 112 ; 
 Ela. Com. vol. i. p. 442). So, too, 
 Chancellor Kent (vol. ii. p. 128): 
 ' The legal effects of marriage are gen- 
 erally deduoible from the principle of 
 the common law, by which the husband 
 and wife are regarded as one person, and 
 308 
 
 her legal existence and authority in a 
 degree lost and suspended during the 
 existence of the matrimonial union.' 
 Such being the undoubted law of mar- 
 riage, how can it be conceived that, 
 pending the existence of this relation, 
 the unity it creates can be reconciled 
 with separate and independent capacities 
 in that unity, such as belong to beings 
 wholly disconnected, and each sui ju- 
 ris ? Now, the divorce a mensa et tJwro 
 does not sever the matrimonial tie ; on 
 the contrary, it recognizes and sustains 
 that tie, and the allowance of alimony 
 arises from and depends upon reciprocal 
 duties and obligations involved in that 
 connection. The wife can have no claim 
 to alimony but as wife, and such as arises 
 from the performance of her duties as 
 wife ; the husband sustains no responsi- 
 bilities save those which flow from his 
 character and obligations as husband, 
 presupposing the existence and fulfilment 
 of conjugal obligations on the part of the 
 wife. It has been suggested that by the 
 regulations of some of the States a married 
 woman, after separation, is permitted to 
 choose a residence in a community or 
 locality different from that in which she 
 resided anterior to the separation, and 
 different ft-om the residence of the hus- 
 band. It is presumed, however, that 
 no regulation, express or special, can 
 be requisite in order to create such a 
 permission. This would seem to he im- 
 plied in the divorce itself ; the pur- 
 pose of which is, that the wife should 
 no longer remain suh potestate viri, hut 
 should be freed from the control which 
 had been abused, and should be empow- 
 ered to select a residence and such asso- 
 ciations as would be promotive of her 
 safety and comfort. But whether ex- 
 pressed in the decree for separation, or 
 implied in the divorce, such a privilege 
 does not destroy the marriage relation ; 
 much less does it remit the parties to 
 the position in which they stood before 
 marriage, and create or revive ante- 
 nuptial, civil, or political rights in the 
 
§ 222.] DOMICIL OP MARRIED WOMEN. [CHAP. X. 
 
 vorced a mensa et thoro, or even one entitled to a divorce on 
 the ground of the desertion or other misconduct of her hus- 
 band, with power to act for herself under a variety of circum- 
 stances, leaves little room to doubt that the capacity of one 
 so divorced to select for herself a domicil will be generally 
 recognized in this country. 
 
 § 222. Domicil of Husband continues to be that of Divorced 
 Wife or Widow until she has established another for herself. — 
 Marriage does not operate as a mere suspension of the maiden 
 domicil of the wife, but as a substitution for it of the domicil 
 of the husband. " The domicil which she had before marriage 
 was forever destroyed by that change in her condition," said 
 Lord Brougham, in Warrender v. Warrender ; and the dis- 
 solution of the marriage, either by the death of her husband 
 or by divorce, would not remit her to her former domicil. 
 Her derivative domicil continues after the death of her hus- 
 band,^ or after divorce a vinculo matrimonii,^ until she ac- 
 quires a domicil of choice in the usual way, or obtains another 
 derivative domicil by a second marriage. Such was also the 
 doctrine of the Roman law : " Vidua mulier amissi mariti 
 domicilium retinet, exemplo clarissimas personse per maritum 
 factse ; sed utrumque aliis intervenientibus nuptiis permuta- 
 tur." 3 Zangerus * holds that if the husband had several domi- 
 
 wife. Both parties remain subject to 391 ; Harkins v. Arnold, 46 Ga. 656 ; 
 
 the obligations and duties of husbaud Voet, Ad Pand . 1. 5, t. 1, no. 95 ; 
 
 and wife. Neither can marry during the Donellus, De Jure Civili, 1. 17, o. 12, 
 
 lifetime of the other, nor do any act p. 979, no. 20 ; Zangerus, De Except, 
 
 whatsoever which is a wrong upon the pt. 2, c. 1, noa. 56 and 96-98 ; Po- 
 
 conjugal rights and obligations of either, thier, Intr. aux Cout. d'Orleans, no. 12 ; 
 
 From these views it seems to me to fol- Demolombe, Cours de Code Napoleon, 
 
 low, that a married woman cannot dur- t. 1, no. 370 ; Delvincourt, Cours de 
 
 ing the existence of the matrimonial Code Civil, t. 1, p. 42, no. 12 ; Sa- 
 
 relation, and during the life of the hus- vigny, System, etc. § 353 ; Guthrie's 
 
 band the wife cannot be remitted to tlie transl. p. 100 ; Bar, § 29 ; Calvo, Diet, 
 
 civil or political position of a, feme sole, de Droit, Int. vert. Dom. ; Phillimore, 
 
 and cannot therefore become a eitizen of Dom. p. 27, no. 41 et seg. ; Id. Int. L. 
 
 a State or community different from that vol. iv. no. 74 et seq. ; Dicey, Dom. 
 
 of which her husband is a member." p. 108 ; Story, Confl. of L. § 46. 
 
 1 Gout V. Zimmerman, 5 Notes of ^ Dicey, Dom. p. 109, and see in- 
 
 Cases, 440; Lockhart's Trusts, 11 Ir. Jur. fra, note 6. 
 
 (n. s.) 245; Pennsylvania v. Eavenel, ' Dig. 50, t. 1, 1. 22, § 1. 
 
 21 How. 103 ; Danbury v. New Haven, * De Except, pt. 2, c. 1, no. 98. 
 5 Conn. 584 ; Ensor v. Graff, 43 Md. 
 
 309 
 
I 223.J THE LAW OF DOMICIL. [CHAP. X. 
 
 cils, upon his death bis widow would retain them all, unless 
 she has selected one of them in a certain place, and there 
 dwells, with her family, " holding fire and light." The doc- 
 trine of the widow's title to the domicil of her deceased hus- 
 band was successfully maintained by Sir Leohne Jenkins, 
 against the lawyers of France, in the question of the disputed 
 succession to the personal property of Henrietta Maria, widow 
 of Charles 1.^ 
 
 It has been held in several cases in this country that a 
 wife retains after divorce a vinculo the settlement of her 
 husband, until she gains another for herself,^ and the same 
 doctrine would undoubtedly be applied in cases of domicil of 
 whatever grade. 
 
 Demolombe ^ thus sums up the subject : " When the cause 
 upon which is founded the legal attribution of a ' domicile de 
 droit ' ceases, the person does not recover the old domicil 
 which he formerly had; he preserves, on the contrary, his 
 domicil in the place where the law had put it, until he has 
 adopted another. It is thus that the wife, after the dissolu- 
 tion of the marriage or separation de corps, does not recover, 
 ' de plein droit,' the domicil which she had before she was 
 married." It would seem that the burden of proof would be 
 upon the party alleging a domicil for the widow or divorced 
 woman different from that of her husband at the time of the 
 dissolution of marriage. 
 
 § 223. Can a Wife who is entitled to a Divorce establish for 
 herself a Domicil different from that of her Husband ? — We 
 come now to consider briefly a subject involved in great diffi- 
 culty, and about which there has been much conflict of opin- 
 ion ; namely, whether when a husband has deserted his wife 
 or committed other acts which would entitle her to a divorce, 
 but there having been no decree of dissolution or judicial 
 separation by a court of competent jurisdiction, the wife is 
 entitled to and may be considered as having an independent 
 
 ^ Wynrie's Life of Sir Leoline Jen- 438 ; Guilford v. Oxford, 9 Conn. 321 ; 
 
 kins, vol. i. p. xix, vol. ii. pp. 665-670. Buffaloe v. WUtedeer, 1.5 Pa. St. 182 ; 
 
 See Phillimore, Dom. pp. 28, 29, no. 42 Lake t>. South Canaan, 87 id. 19. 
 ei seq. ; Id. Int. L. vol. iv. no. 76 et seq. ' Coups de Code NapoWon, t. 1, no. 
 
 6 Koyalton v. West Fairlee, 11 Vt. 870. 
 
 310 
 
§ 224.] DOMICIL OP MARRIED WOMEN. [CHAP. X. 
 
 domicil of her own. This question has generally arisen in 
 cases involving jurisdiction to grant divorce. 
 
 We have already seen that, as a general rule, jurisdiction 
 for the purpose named, according to the doctrine received in 
 Great Britain and this country, and indeed in all other coun- 
 tries in which the principle of nationality has not been substi- 
 tuted, depends upon the domicil of the parties.^ But suppose, 
 for example, a husband domiciled and living with his wife in 
 Pennsylvania, deserts her there and removes to Tennessee, 
 where he becomes domiciled. If the husband deserts his wife 
 without leaving the State, by the law of Pennsylvania the 
 courts of that State have jurisdiction to grant to the wife a 
 divorce after the lapse of two years. Does the husband's 
 change of domicil to another State make any difference ? 
 Does it compel the wife to seek redress in a Tennessee court 
 and oust the jurisdiction of the proper Pennsylvania court ? 
 
 § 224. Id. — To hold the affirmative, would be in most in- 
 stances to deny all redress to the wife. That she may follow 
 her husband to his new home and maintain proceedings there 
 is held in some of the decided cases,^ and denied in others,^ 
 — the denial usually, however, resting upon purely statutory 
 grounds, such as the requirement of actual residence by the 
 libellant. But however that may be, she is not bound to 
 resort to the courts of her husband's new domicil for redress,^ 
 but may maintain her suit for divorce at the place where she 
 was domiciled with her husband at the time his offence oc- 
 curred.* But upon what ground is this jurisdiction to be 
 predicated? It would seem sufficient to say that, while recog- 
 
 1 Supra, § 39. ' Authorities cited infra, notes 4 
 
 1 Greene v. Greene, 11 Pick. 410 ; and 5. 
 
 Hasten v. Hasten, 15 N. H. 159 ; Har- * Hopkins v. Hopkins, 35 N. H. 
 
 rison v. Harrison, 20 Ala. 629 ; Smith 474 ; Harteau v. Harteau, 14 Pick. 181 ; 
 
 V. Moorehead, 6 Jones Eq. 360 ; Davis Shaw v. Shaw, 98 Mass. 158 ; Dorsey 
 
 I). Davis, 30 111. 180 ; Kashaw v. Ka- v. Dorsey, 7 Watts, 349 ; Colvin v. 
 
 shaw, 3 Cal. 312 ; see Bishop, Marr. & Eeed, 55 Pa. St. 375 ; Reel v. Elder, 62 
 
 Div. vol. ii. § 127, 4th ed. id. 308; Van Storch v. Griffin, 71 id. 240; 
 
 2 Hopkins v. Hopkins, 85 N. H. Piatt's Appeal, 80 id. 501 ; Hull v. Hull, 
 474; Schonwald J). Schonwald, 2 Jones 2Strob. Eq. 174;Hanberryi). Hanberry, 
 Eq. 367 ; Jenness ». Jenness, 24 Ind. 29 Ala. 719 ; Turner v. Turner, 44 id. 
 355 ; Dutcher v. Dutoher, 39 Wis. 651; 437. And the authorities cited infra, 
 Kruse v. Krnse, 25 Mo. 68 ; Pate v. note 7, apply a fortiori in support of 
 Pate, 6 Mo. App. 49. this position. 
 
 311 
 
§ 224.J 
 
 THE LAW OP DOMICIL. 
 
 [chap. X. 
 
 nizing the theoretical identity of domicil of husband and wife, 
 the courts of the place last mentioned will assume jurisdic- 
 tion of the case in order to prevent a failure of justice, — in 
 order to prevent a husband who has committed a wrong 
 against his wife and against the marriage relation from, at 
 the same time, depriving her of the means of redress; in 
 other words, that they will not suffer the theoretical ground 
 of jurisdiction to be pressed to the extent of defeating the 
 ends of justice." 
 
 ^ This is substantially what was said 
 by Shaw, C. J. , in Harteau v. Harteau, 
 supra, although he does in that case 
 speak of the wife having a separate 
 domicil under such circumstances. His 
 opinion, which has been constantly re- 
 ferred to in the cases, and upon which 
 much of the reasoning on these ques- 
 tions is built, is as follows : " The 
 ground of defence to this libel is, that 
 the parties were not within the jurisdic- 
 tion or limits, nor subject to the laws 
 of the Commonwealth, at the time of 
 the act done, which is relied on as the 
 cause of divorce. We consider it to be 
 proved that these parties had 6o«a ^tfo 
 changed their domicil, and become cit- 
 izens of the State of New York, before 
 the desertion charged. Such being the 
 fact, it seems to us to be the same case 
 as if they had never been inhabitants 
 of this Commonwealth.' As such, it 
 seems to fall within the principle of the 
 cases of Richardson v. Richardson, 3 
 Mass. R. 153, and Hopkins v. Hopkins, 
 3 Mass. R. 158. The true ground of 
 argument in this case is, not that the 
 parties did not live in this county, but 
 that they were not then subject to the 
 jurisdiction of the court, and their con- 
 jugal rights and obligations did not 
 depend upon the operation of our 
 laws. 
 
 " The right to a divorce, in the cases 
 in which it shall be granted, are regu- 
 lated by the St. 1785, c. 69, § 3. The 
 seventh section regulates the place 
 where the trial shall be had. It ap- 
 pears, from the preamble to this sec- 
 tion, that two objects were to be ac- 
 
 312 
 
 complished by this act : the first, to 
 transfer the jurisdiction from the gover- 
 nor and counsel to the Supreme Judicial 
 Court ; and the second, which resulted 
 as a consequence from the other, to 
 have the hearing in the several counties, 
 instead of requiring all persons to at- 
 tend at Boston, as they must when 
 the jurisdiction was in the governor 
 and counsel. 
 
 "The tenn 'live,' in this section, it 
 appears to me, must mean where the 
 parties have their domicil when the 
 libel is filed, or the suit commenced. 
 
 " To test this, suppose parties live 
 as man and wife in Suffolk, and adul- 
 tery is committed by the husband, but 
 it is unknown to the wife. They re- 
 move into Middlesex, lona fide, and 
 whilst residing there the adultery is dis- 
 covered. Must the vrife libel in Suffolk ? 
 It may be said the fact was committed 
 there ; but the rule of locality appli- 
 cable to a trial for crime does not 
 apply. Suppose, in the above case, 
 that while living at Boston, the hus- 
 band had committed the offence in 
 Providence, out of the jurisdiction of 
 Massachusetts. "Would not this be as 
 much a good cause of divorce for the 
 wife, as if done within the jurisdiction ? 
 The fact is to be tried, not because it is 
 a violation of the law of the Common- 
 wealth, which the State has a right to 
 punish, but because it is a violation of 
 the conjugal obligation, contract and 
 duty. 
 
 "The wife is, in such case, entitled 
 to a divorce ; and if she continues to 
 reside in the same county, her libel 
 
224.J 
 
 DOMICIL OP MARRIED WOMEN. 
 
 [chap. X. 
 
 But the doctrine of many of the American cases goes fur- 
 ther, and assumes that under circumstances similar to those 
 
 would properly be brought in that 
 county, though the parties do not live 
 therein, within the literal construction 
 of the statute. But suppose, in the 
 mean time, for necessity or otherwise, 
 she has taken up her abode in another 
 county, she still has a right to a di- 
 vorce, and the question is, in what 
 county shall she file her libel. Neither 
 of the parties now live in the county 
 where they formerly lived together. 
 It would seem to be a good compliance 
 with the requisition of the statute, 
 which cannot be construed literally, to 
 construe it cy pres, and permit her to file 
 her libel in the county where she has 
 her abode at the time (Lane v. Lane, 
 2 Mass. R. 167). The statute directs 
 that the suit shall be brought in the 
 county where the parties live, for two 
 reasons, — to save expense, and because 
 the truth can he better discerned. This 
 would in general be true, not only be- 
 cause, often, the fact would be done at 
 such place, but also because the parties 
 would there be better known. It clearly 
 does not limit the place of trial to the 
 county where the fact was committed, 
 because that is often out of the State, 
 or in the State, but in a county other 
 than that where the parties live. Much 
 obscurity has, we think, been thrown 
 on the subject, by confounding the two 
 questions, which are essentially different, 
 viz., (1) in what cases a party is entitled 
 to claim a divorce ; and (2) in what 
 county the libel should be brought. 
 
 "As it is a right conferred by stat- 
 ute, the one question may sometimes de- 
 pend on the other ; for if by the terms 
 of the statute no suit can be instituted, 
 it is very clear that no divorce can be 
 had. 
 
 "But I think there may be cases 
 where the statute confers a right to 
 have a divorce, in which the statute 
 gives a general jurisdiction to this court, 
 and yet where the parties do not live, — 
 that is, have their domicil, — either at 
 the time of the act done, or at the time 
 
 of the suit commevjxd, in any county in 
 this Commonwealth. If so, there are 
 cases where the statute cannot be liter- 
 ally complied with, and must be con- 
 strued cy pres according to the intent . 
 
 " Suppose a husband commits adul- 
 tery and then purchases a house and 
 actually takes up his domicil in another 
 State, but, before his wife has joined 
 him, she is apprised of the fact, and 
 immediately files a libel for a divorce, 
 and obtains an order to protect her 
 from the power of her husband, as by 
 law she may. He is an inhabitant of 
 another State, and can in no sense be 
 said to live in any county in this State. 
 And yet it would be difficult to say that 
 she is not entitled to have a divorce here. 
 Supposing, instead of the last case, he 
 has actually purchased a house and 
 changed his domicil to another State, 
 and there commits adultery, and the 
 wife, not having joined him, and not 
 having left her residence in this State, 
 becomes acquainted with the fact, and 
 libels and obtains a similar order ; could 
 she not maintain it ? Yet in the latter 
 case, at the time of the act done, and in 
 the other, at the time -of the suit insti- 
 tuted, the respondent, one of the parties, 
 certainly did not live in any county of 
 this Commonwealth. 
 
 " This suggests another course of 
 inquiry, — that is, how far the maxim 
 is applicable to this case, ' that the 
 domicil of the wife follows that of the 
 husband.' Can this maxim be true in 
 its application to this subject, where 
 the wife claims to act, and by law, to a 
 certain extent, and in certain cases, is 
 allowed to act, adversely to her hus- 
 band ? It would oust the court of its 
 jurisdiction in all cases where the hus- 
 band should change his domicil to 
 another State before the suit is in- 
 stituted, 
 
 " It is in the power of a husband to 
 change and fix his domicil at his will. 
 If the maxim could apply, a man might 
 go from this county to Providence, take 
 
 313 
 
§ 224.J 
 
 THE LAW OP DOMICIL. 
 
 [chap. X. 
 
 named a wife may have, at least for purposes of divorce, a 
 domicil separate from and independent of that of her hus- 
 
 a hoase, live in open adultery, abandon- 
 ing his wife altogether, and yet she 
 could not libel for a divorce in this 
 State, where, till such change of domicil, 
 they had always lived. He clearly lives 
 in Ehode Island ; her domicil, accord- 
 ing to the maxim, follows his ; she 
 therefore, in contemplation of law, is 
 domiciled there too ; so that neither of 
 the parties can be said to live in this 
 Commonwealth. It is probably a juster 
 view to consider that the maxim is 
 founded upon the theoretic identity of 
 person and of interest between husband 
 and wife, as established by law, and the 
 presumption that, from the nature of 
 that relation, the home of the one is that 
 of the other, and intended to promote, 
 strengthen, and secure their interests 
 in this relation, as it ordinarily exists, 
 where union and harmony prevail. But 
 the law wDI recognize a wife as having 
 a separate existence, and separate inter- 
 ests, and separate rights, in those cases 
 where the express object of all proceed- 
 ings is to show that the relation itself 
 ought to be dissolved, or so modified 
 as to establish separate interests, and 
 especially a separate domicil and home, 
 bed and board being put, a part for the 
 whole, as expressive of the idea of 
 home. Otherwise, the parties in this 
 respect would stand upon very unequal 
 grounds, it being in the power of the 
 husband to change his domicil at will, 
 but not in that of the wife. The hus- 
 band might deprive the wife of the 
 means of enforcing her rights, and in 
 effect of the rights themselves, and of 
 the protection of the laws of the Com- 
 monwealth, at the same time that his 
 own misconduct gives her a right to be 
 rescued from his power on account of 
 his own misconduct towards her. Dean 
 V. Eichmond, 5 Pick. 461 ; Barber v. 
 Root, 10 Mass. E. 260. 
 
 " The place where the marriage was 
 had seems to be of no importance. The 
 law looks at the relation of husband and 
 wife as it subsists and is regulated by 
 
 314 
 
 our laws, without considering under 
 what law or in what country the mar- 
 riage was contracted. The good sense 
 of the thing seems to be, if the statute 
 will permit us to reach it, that where 
 jjarties have bona fide taken up a dom- 
 icil in this Commonwealth and have 
 resided under the protection and sub- 
 ject to the control of our laws, and dur- 
 ing the continuance of such domicil 
 one does an act which may entitle the 
 other to a divorce, such divorce shall be 
 granted and the suit for it entertained, 
 although the fact was done out of the 
 jurisdiction, and whether the act be a 
 crime which would subject a party to 
 punishment or not ; that after such 
 right has accrued, it cannot be de- 
 feated, either by the actual absence of 
 the other party, however long con- 
 tinued animo revertendi, or by a color- 
 able change of domicil, or even by an 
 actual change of domicil ; and that it 
 shall not be considered in law that the 
 change of domicil of the husband draws 
 after it the domicil of the wife to an- 
 other State, so as to oust the courts 
 of this State of their jurisdiction, and 
 deprive the injured wife of the protec- 
 tion of the laws of this Commonwealth 
 and of her right to a divorce. But 
 where the parties have boTia fide re- 
 nounced their domicil in this State, 
 though manied here, and taken up a 
 domicil in another State, and there live 
 as man and wife, and an act is done by 
 one, which, if done in this State, would 
 entitle the other to a divorce, and one 
 of the parties comes into this State, the 
 courts of this Commonwealth have not 
 such jurisdiction of the parties, and of 
 their relation as husband and wife, 
 as to warrant them in saying that 
 the marriage should be dissolved. 
 
 " The case of Barber v. Root is an 
 authority for saying that such a divorce 
 would not be valid in New York. 
 
 "It is of importance that such a 
 question should be regulated, if pos- 
 sible, not by local law or local usage, 
 
§ 224 a.] 
 
 DOMICIL OP MAEEIED WOMEN. 
 
 [chap. X. 
 
 band ; ® and this doctrine has been can-ied to its logical con- 
 clusion in a large number of cases, in which it has been held 
 that a wife may, after the commission by her husband of an 
 act which will entitle her to a divorce, leave the place of their 
 common domicil and become domiciled in another State, so 
 as to give the courts there jurisdiction to grant her a divorce,^ 
 — and this even though the husband has never resided there. 
 § 224 a. Id. — That this extreme doctrine is dangerous, and 
 capable of misapplication and disastrous results, need hardly 
 be said. It is not the unanimous opinion of American jurists, 
 but, on the contrary, many dissenting voices have been raised 
 against it.^ Still it has been accepted by the courts of many 
 
 underwhich the marriage relation should 
 be deemed subsisting in one State and 
 dissolved in another ; but upon some 
 general principle which can be recog- 
 nized in all States and countries, so 
 that parties who are deemed husband 
 and wife in one, shall be held so in 
 all. 
 
 " So many interesting relations, so 
 many collateral and derivative rights 
 of property and of inheritance, so many 
 correlative duties, depend upon the sub- 
 sistence of this relation, that it is 
 scarcely possible to overrate the impor- 
 tance of placing it upon some general 
 and uniform principle which shall be 
 recognized and adopted in all civilized 
 States. 
 
 "It appearing that the alleged de- 
 sertion would be no ground of divorce, 
 by the laws of the State of New York, 
 that at the time of the alleged desertion 
 the pai-ties had their home in that State 
 and were not subject to the law and 
 jurisdiction of this Commonwealth, and 
 that when the suit was instituted the 
 respondent still had his domicil in the 
 State of New York, the court are of 
 opinion that a divorce a mensa cannot 
 be decreed, and that the libel be dis- 
 missed. If it be true, as stated by the 
 respondent's counsel, that no evidence 
 was given of the respondent's ability to 
 support his wife, that would seem to be 
 an additional reason why the libel can- 
 not be maintained." 
 
 ' See authorities cited in notes 4 
 and 7. 
 
 ' Cheever v. Wilson, 9 Wall. 108 ; 
 Harding v. Alden, 9 Greenl. 140 ; 
 Frary v. Frary, 10 N. H. 61 ; Ditson 
 V. Ditson, 4 R. I. 87 ; Sawtell v. Saw- 
 tell, 17 Conn. 284 ; Kinnier v. Kinnier, 
 45 N. Y. 535; State v. Schlachter, 
 Phil. N. C. 520 ; Tolen v. Tolen, 2 
 Blackf. 407 ; Wright v. Wright, 24 
 Mich. 180 ; Craven v. Craven, 27 Wis. 
 418 ; Dutcher v. Dutcher, 39 id. 651 ; 
 Fishli V. Fishli, 2 Littell, 337 ; Shveek 
 V. Shreck, 32 Tex. 578 ; Moffatt v. Mof- 
 fatt, 5 Cal. 280 ; and see Bishop, Marr. 
 & Div. vol. ii. § 129. 
 
 1 Dorsey v. Dorsey, 7 Watts, 349 ; 
 Colvin -0. Reed, 55 Pa. St. 375 ; Reel 
 V. Elder, 62 id. 308 ; Prosser v. War- 
 ner, 47 Vt. 667 ; Neal v. Her Husband, 
 1 La. An. 315 ; Maguire v. Maguire, 7 
 Dana, 181 ; Bradshaw v. Heath, 13 
 Wend. 407 ; and see Jackson v. Jack- 
 son, 1 Johns. 424, and Borden v. Fitch, 
 15 id. 121. 
 
 Harteau v, Harteau, although usu- 
 ally cited to the contrary, appears to the 
 writer, when closely scanned, really to 
 belong to this class of cases. 
 
 A distinguished writer, the late Chief 
 Justice Redfield, said in a learned article 
 on Jurisdiction in Divorce (Am. Law 
 Eeg. vol. iii. (n. s.) pp. 193, 222) : 
 " The right of the wife to acquire a 
 new domicil, even after the abandon- 
 ment of her husband and before a ju- 
 
 315 
 
§ 225.] THE LAW OP DOMICIL. [CHAP. X. 
 
 of the States of the Union, and has received the express ap- 
 proval of the United States Supreme Court. 
 
 Said Swayne, J., in Cheever v. Wilson ^ (in which the facts 
 were that the husband and wife having been together domi- 
 ciled in the District of Columbia, and having there separated, 
 the wife subsequently went to Indiana, and after a residence 
 there of a few months procured a divorce on the ground of 
 abandonment) : " It is insisted that Cheever never resided in 
 Indiana; that the domicil of the husband is the wife's, and 
 that she cannot have a different one from his. The converse 
 of the latter proposition is so well settled that it would be idle 
 to discuss it. The rule is that she may acquire a separate 
 domicil whenever it is necessary or proper that she should do 
 so. The right springs from the necessity for its exercise, and 
 endures as long as the necessity continues. The proceeding 
 for a divorce may be instituted where the wife has her domicil. 
 The place of the marriage, of the offence, and the domicil of 
 the husband are of no consequence." A broad statement, 
 certainly ; but the case itself, in view of the facts as reported, 
 is no less remarkable than the language quoted. 
 
 § 225. Id. English Cases. — In England there has been no 
 direct decision upon the point discussed in the preceding sec- 
 tions. In Deck v. Deck,i the facts were that the parties, both 
 British subjects and domiciled in England, separated there by 
 mutual agreement, and the husband subsequently became 
 domiciled and married in the United States. The wife having 
 always remained in England, applied there for a divorce a 
 vinculo on the ground of adultery and bigamy, which was 
 granted. The decision was, however, put by Sir Cresswell 
 Cresswell, who delivered the opinion of the full court, upon 
 the singular ground (for an English lawyer) of political 
 
 dicial separation, seems questionable, judge said : " Both parties were natural 
 
 It has sometimes been so decided ; but borij English subjects ; both, therefore, 
 
 the better opinion is that she cannot, owed allegiance to the crown of Eng- 
 
 nnless It be by way of a return to her land and obedience to the laws of Eng- 
 
 ante-nuptial domicil, orthat of the place land. That allegiance cannot be thrown 
 
 of the marriage, or to some place where off by a change of domicil. The hus- 
 
 the parties have before lived together band, therefore, although he became 
 
 as husband and wife." domiciled in America continued liable 
 
 2 9 Wall. 108, 123. to be affected by the laws of his native 
 
 1 2 Swab. & Tr. 90. The learned country." 
 
 316 
 
§ 226.J DOMICIL OF MARRIED WOMEN. [CHAP. X. 
 
 nationality, to wit : that, although the husband had changed 
 his domicil, he could not change and had not changed his 
 allegiance, and he " therefore continued liable to be affected 
 by the laws of his native country." 
 
 In Le Sueur v. Le Sueur ,2 the facts were, that the parties 
 having been domiciled in Jersey, and the husband having 
 committed adultery there and deserted his wife, became dom- 
 iciled in the United States. Subsequently the wife removed 
 to England, and there applied for a divorce on the grounds 
 of adultery and desertion. Sir E. J. Phillimore, while " dis- 
 posed to assume, in favor of the petitioner, the correctness of 
 the opinion that desertion on the part of the husband may 
 entitle the wife, without a judicial separation, to choose a new 
 domicil for herself," held that she could not make her hus- 
 band amenable to the lex fori of her new domicil, and refused 
 to grant a divorce.^ 
 
 § 226. The Doctrine, if at all admissible, does- not extend be- 
 yond Cases of Divorce. — But whatever may be the effect of 
 the desertion of the wife by the husband, or the commission 
 by the latter of any act which would entitle the former to a 
 divorce, upon local jurisdiction, or — to use a form of ex- 
 pression frequently, but in the opinion of the writer unfor- 
 tunately, used — upon the power of the wife to possess an 
 independent domicil for the purposes of divorce, what would 
 be the effect of the commission by the husband of such an 
 act upon the domicil of the wife when viewed with refer- 
 ence to some other purpose ; for example, personal succes- 
 sion, testamentary or other capacity, or the like ? Here 
 the language of Lord Cranworth in Dolphin v. Robins 
 (where the question was with regard to the formal execu- 
 tion of a will by the wife) may again be quoted. He said : 
 " Whatever might have been the case if such a decree had 
 been pronounced, I am clearly of opinion that, without such a 
 decree, it must be considered that the marital rights remain 
 unimpaired. It was, indeed, argued strongly, that here the 
 facts show that the husband never could have compelled his 
 wife to return to him. The allegation of the appellant, it was 
 
 2 L. K. 1 P. D. 139. 8 L. K. 4 P. D. 1. 
 
 317 
 
§ 227.] THE LAW OF DOMICIL. [CHAP. X. 
 
 contended, contains a distinct averment that the husband had 
 committed adultery; and this would have afforded a valid 
 defence to a suit for restitution of conjugal rights, and so 
 would have enabled the wife to live permanently apart from 
 her husband, which, it is alleged, he agreed she should be at 
 liberty to do. But this is not by any means equivalent to 
 a judicial sentence. It may be, that where there has been a 
 judicial proceeding, enabling the wife to live away from her 
 husband, and she has accordingly selected a home of her own, 
 that home shall, for purposes of succession, carry with it all 
 the consequences of a home selected by a person not under 
 the disability of coverture. But it does not at all follow that 
 it can be open to any one, after the death of the wife, to say, 
 not that she had judicially acquired the right to live separate 
 from her husband, but that facts existed which would have 
 enabled her to obtain a decree giving her that right, or pre- 
 venting the husband from insisting on her return. It would 
 be very dangerous to open the door to any such discussions ; 
 and, as was forcibly put in argument at the bar, if the princi- 
 ple were once admitted, it could not stop at cases of adultery. 
 For, if the husband, before the separation, had been guilty of 
 cruelty towards the wife, that, no less than adultery, might 
 have been pleaded in bar to a suit for restitution of conjugal 
 rights. It is obvious, that to admit questions of this sort to 
 remain unlitigated during the life of the wife, and to be 
 brought into legal discussion after her death for the purpose 
 only of regulating the succession to her personal estate, would 
 be to the last degree inconvenient and improper." 
 
 § 227. Id. — In Yelverton v. Yelverton,^ Sir Cresswell Cress- 
 well considered Dolphin v. Robins as fully establishing this 
 position. He said : " The domicil of the husband is the domi- 
 cil of the wife ; and even supposing him to have been guilty 
 of such misconduct as would furnish her with a defence to a 
 suit by him for restitution of conjugal rights, she could not on 
 that ground acquire another domicil for herself, as was re- 
 cently held by the House of Lords in Dolphin v. Robins." 
 But although the point was raised and strongly urged by 
 
 1 1 Swab. & Tr. 574; s. o. 1 L. T. R. 194 ; 29 L. J. (P. &.M.) 34. 
 318 
 
§ 227.] DOMICIL OF MARRIED WOMEN. [CHAP. X. 
 
 counsel, their lordships do not appear to have considered the 
 facts upon which it was based properly before them under the 
 pleadings in the case.^ The remarks of Lord Cranworth above 
 quoted, however, although perhaps technically dieta, are enti- 
 tled to great weight, both because of their inherent reason- 
 ableness, and because they are the expressions of an eminent 
 judge upon a question which had been fully discussed before 
 him. 
 
 Dr. Bishop, a stout advocate of the extreme American rule 
 in divorce cases above referred to, in his work on Marriage 
 and Divorce,* says : " If the question should come up collater- 
 ally, where, in fact, the ill conduct of the husband had justi- 
 fied the wife in separating from him, — as, for example, if the 
 domicil of the wife in the case of a will made by her should 
 be important, — it certainly seems to the writer of these 
 volumes, though he is not able to refer to a decision in point, 
 that the wife's domicil must be taken to be the same with the 
 husband's ; because, in such collateral proceeding, the ques- 
 tion whether the husband had been guilty of adultery, or of 
 cruelty, or of any other offence having the same legal effect, 
 could not be inquired into." 
 
 2 See particularly Lord Kingsdown, p. 422. 
 8 Vol. ii. § 129, 4th ed. 
 
 319 
 
§ 229.] THE LAW OP DOMICIL. [CHAP. XI. 
 
 CHAPTER XI. 
 
 DOMICIL OF PAETICULAB PEESONS (^continued'). — INFANTS. 
 
 § 228. We have already seen that at birth the infant, if 
 legitimate, receives as his own the domicil of his father,^ and 
 how the question of legitimacy is to be determined has al- 
 ready been discussed.^ If he is illegitimate or posthumous, 
 he receives the domicil of his mother ; ^ and if neither father 
 nor mother be known, he is presumed to be domiciled where 
 he is found — at least until his place of birth or his parent- 
 age be shown.* If he is born illegitimate, and is legitimated 
 by the subsequent marriage of his parents, he thereupon re- 
 ceives the domicil of his father.^ And such domicil, that is, 
 domicil of origin or domicil conferred by subsequent legiti- 
 mation, is presumed to continue until the contrary is shown. 
 This leads us to inquire how the domicil of an infant may be 
 changed. 
 
 § 229. Domicil of Infant cannot be changed by his own Act. 
 — And first, it cannot, at least ordinarily, be changed by his 
 own act. Infants are deemed in law to be wanting in dis- 
 cretion, and, therefore, without capacity to form the intention 
 requisite for the establishment of a domicil of choice. Hence 
 it results that until they arrive at such age as is deemed by 
 the particular law to which they are subject suf&cient for the 
 attribution to them of capacity to choose and act for them- 
 selves, they must either retain the domicil which they received 
 at birth, or must depend upon other persons for a change of 
 domicil. Indeed, it has been laid down by a good authority ^ 
 as the undisputed position of all jurists, that a minor cannot of 
 his own accord, or — to use the expression of Bynkershoek — 
 
 1 Supra, § 105. 5 Monson v. Palmer, 8 Allen, 551 ; 
 
 2 Supra, § 30. Dicey, pp. 69, 73, 97, 98 ; Westlake, 
 » Supra, § 105. § 235, 2d ed. 
 
 * W. I PhilUmore, Dom. p. 37, no. 66. 
 
 320 
 
§ 230.J DOMICIL OP INFANTS. [CHAP. XI. 
 
 propria marte, change his domicil.^ This is undoubtedly 
 the general rule, and it cannot be said that there are in the 
 law as understood and administrated in England and America 
 any well established exceptions.^ 
 
 § 230. Roman Law. — The Roman Law does not help us 
 much on this subject. Although no text directly sustaining 
 him can be cited, Savigny holds that " children born in wed- 
 lock have unquestionably from their birth the same domicil as 
 their father." ^ And he adds that " they unquestionably fol- 
 low the father, if he establishes a new domicil after their birth, 
 as long as they themselves still belong to his household." ^ 
 This is undoubtedly true, but the Roman law allowed the child 
 freely to choose a domicil for himself : " Placet etiam, filios- 
 familias domicilium habere posse ; Non utique ibi, ubi pater 
 habuit, sed ubicunque ipse domicilium constituit ; " ^ and did 
 not hold the doctrine of derivative domicil as it prevails in 
 modern law : " Filius civitatem, ex qua pater ejus naturalem 
 originem ducit, non domicilium sequitur." * " Patris domi- 
 cilium filium aliorum incolam civilibus muneribus aliens civi- 
 tatis non adstringit ; cum in patris quoque persona domicilii 
 ratio temporaria sit." ^ But in view of the extent to which 
 
 2 Somerville v. Somerville, 5 Ves. Johnson v. Turner, 29 id. 280 ; Powers 
 
 Jr. 750 ; Forbes v. Forbes, Kay, 341 ; v. Mortee, 4 Am. L. Eeg. 427 ; Hardy 
 
 Douglas V. Douglas, L. R. 12 Eq. Cas. v. De Leon, 6 Tex. 211 ; Bussell «. Kau- 
 
 617 ; Laneuyille v. Anderson, 2 Spinks, dolph, 11 id. 460 ; Trammell v. Tram- 
 
 41 ; Lamar v. Micou, 112 U. S. 452 ; meU, 20 id. 406 ; Phillimore, Dom. loe 
 
 Hart V. Lindaey, 17 N. H. 235 ; Wood- cit. ; Dicey, Dom. p. 106 ; Story, Confl. 
 
 worth V. Spring, 4 Allen, 321 ; Ames of L. § 46 ; Pothier, Intr. aux Cout. 
 
 V. Duryea, 6 Lans. 155 ; Ex parte Daw- d'OrUans, no. 16 ; and authorities cited 
 
 son, 3 Bradf. 130 ; Seiter v. Straub, in the notes following. 
 
 1 Demarest, 264 ; Blumenthal v. Tan- " Under the Scotch law a child 
 
 nenholz, 31 N. J. Eq. 144 ; Guier v. who has reached the age of puberty 
 
 O'Daniel, 1 Binn. 349, note ; School may change his domicil at pleasure. 
 
 Directors v. James, 2 Watts & S. 568 ; Amott v. Groom, 9 D. (Sc. Sess. Cas. 
 
 He Lower Oxford Township Election, 11 2d ser. 1846) 142 ; Wallace's Case, 
 
 Phil. 641 ; Harkins v. Arnold, 46 Ga. Eobertson, Pers. Sue. p. 201 ; Fraser, 
 
 656 ; Metcalf -o. Lowther's Ex'rs, 56 Pers. Eelations, vol. ii. pt. 2, c. 1 and 
 
 Ala. 312 ; Hears v. Sinclair, 1 W. Va. c. 3, § 1 ; Erskine, Principles of the 
 
 185 ; Hiestand v. Kuns, 8 Blackf. 345 ; Law of Scotland, bk. 1, tit. 7, § 1. 
 
 Warren v. Hofer, 13 Ind. 169; Mad- i System, etc. §353 (Guthrie's trans, 
 
 dox V. The State, 32 id. Ill ; Freeport p. 100). 
 
 V. Supervisors, 41 IlL 495 ; Eue High, ^ i,j_ j,ote (t). 
 
 Appellant, 2 Dougl. (Mich.) 515 ; Allen » Dig. 60, tit. 1, 11. 3 and i. 
 
 V. Thoma.son, 11 Humph. 536 ; Grim- * Id. 1. 6, § 1. 
 
 mett V. Witherington, 16 Ark. 377 ; « Id. 1. 17, § 11. 
 
 21 321 
 
§ 231.J THE LAW OF DOMICIL. [CHAP. XI. 
 
 the doctrine of paternal power was carried in the Roman law, 
 a residence upon which was based the domicil of the filius- 
 familias must have been with the consent, express or tacit, of 
 the father. However, inasmuch as the patria potestas ex- 
 tended not only to children of tender years, but also to those 
 of mature age and to their children, and ended only with the 
 death of the father or the emancipation of the child, the 
 Roman law furnishes us on this subject no fair analogy from 
 which we can draw authority for the modern doctrine. 
 
 § 231. The Rule of Disability sometimes stated in this Country 
 in a Qualified Form. — The rule of disability has, in this country, 
 been frequently stated, probably from an abundance of caution, 
 as applicable to un-emancipated minors,^ and in settlement 
 cases it has been held that an emancipated minor may acquire 
 a settlement for himself. ^ But the latter doctrine is a legacy 
 of the English law of pauper settlements into which the doc- 
 trine of domicil does not enter, and which rests upon its own 
 peculiar grounds, largely statutory. These cases are therefore 
 not authorities even for the doctrine that an emancipated 
 minor may change his municipal domicil ; niuch less can they 
 have any weight in determining the question of his capacity 
 to change his national or (^itasi'-national domicil. Emanci- 
 pation, as understood in this country, relates mainly to the 
 right of the minor to acquire a settlement for himself, and to 
 hia right to receive and dispose of his own earnings, and is not 
 to be understood to clothe him with any legal capacity, except 
 such as is actually necessary for his maintenance and protec- 
 tion, and, if married, for the maintenance and protection of his 
 family. Whatever, therefore, might be held with regard to 
 his power to change his municipal domicil,^ the consequences 
 
 ^ E. g., Re Lower Oxford Township only case which at all countenances the 
 
 Election, supra; Blumenthal v. Tan- power of a minor propria marie to 
 
 nenholz, supra; Wheeler i). Burrow, change his municipal domicil is Rotei-ts 
 
 18 Ind. 14. 0. Walker, 18 Ga. 5, where it was held, 
 
 ^ Lubec V. Freeport, 3 Greenl. 220; with reference to a statutory provision 
 
 St. George v. Deer Isle, id. 390 ; Wells regulating probate jurisdiction, that the 
 
 V. Kennebunkport, 8 id. 200 ; Dennys- residence of a guardian is not the res- 
 
 ville V. Trescott, SO Me. 470 ; Charles- idence of his ward, who has come to 
 
 town V. Boston, 13 Mass. 468 ; Wash- years of discretion, unless the latter 
 
 ingtou V. Beaver, 3 W. & S. 548. choose to make it his residence. In this 
 
 ' So far as the writer is aware, the case the ward, being twenty years old, 
 
 322 
 
§ 232.] DOMICIL OF INFANTS. [CHAP. XI. 
 
 of a change of national or ywasi-national domicil are of such 
 a serious nature that it seems dangerous to allow him to 
 change such domicil until he has arrived at the full age of 
 discretion. 
 
 § 232. Is there any Exception in favor of a Married Minor? — 
 Pothier,^ while holding that a minor may not transfer his 
 domicil at his will, says that he nevertheless may in certain 
 cases, one of which is, when he marries with the consent of 
 those under whose power he is ; in which case he may transfer 
 his domicil to the place where he takes his wife ; and he may 
 also, after he is married, transfer it wherever it seems good 
 to him. And this seems to have been a well recognized prin- 
 ciple in the old French law. 
 
 In a Texas case ^ this question was raised, hut not directly 
 decided. Among the English text-writers, Phillimore^ goes 
 beyond the doctrine of Pothier, and says : " It can scarcely 
 be doubted that in Great Britain a minor once married, 
 whether with or without the proper consent, would be held 
 capable of choosing his domicil." Westlake,* in his first edi- 
 tion, holds it to be " clear that a married minor must be 
 treated as sui Juris in respect of domicil, since on his mar- 
 riage he actually founds an establishment separate from the 
 parental home." And Foote ^ approves this expression, add- 
 ing that, " in such case the question would appear to be one 
 of fact ; and if the minor, after the ceremony of marriage, 
 continued to reside with his or her parents, there would be no 
 
 removed from one county to another intimated that such change may occur 
 against the will of his guardian, and by the mere will of the minor and with- 
 remained there in spite of the express out the assent, express or implied, of 
 commands of the latter to return. Not- those having authority over him. Con- 
 withstanding which the Supreme Court trast this case with Taunton v. Ply- 
 held that the ward had acquired a resi- mouth, infra, note 8. 
 dence in the latter county sufficient i Intr. aux Cout. d'Orleans, no. 16. 
 to found probate jmisdiction. If the See also Merlin, Eepertoire, verb. Dom. 
 case is to be considered as standing up- no. 5 ; Boullenois, Traite de la Perso- 
 on general gjounds of municipal dom- nalit^, etc., t. 2, obs. 32, and Denizart, 
 ioi!, it certainly goes far beyond any- verb. Dom. no. 9. 
 thing that has been held elsewhere. 2 Ti-ammell ». Trammell, 20 Tex. 406. 
 We shall see hereafter that the muni- » Dom. p. 50, no. 91 ; Id. Int. L. 
 cipal domicil of a ward may be changed vol. iv. no. 126. 
 by his guardian, or by himself with the * Priv. Int. L. p. 36, no. 37. 
 assent of the latter. But so far as the ' Priv. Int. Jur. p. 9. 
 writer is aware, it is nowhere else held or 
 
 323 
 
§ 232.] THE LAW OP DOMICIL. [CHAP. XI. 
 
 occasion to consider it, inasmuch as there would be only one 
 locality to which the domicil could possibly be attributed." 
 In his second edition, Westlake ^ says : " If it is asked 
 whether the condition of full age is necessary in the case 
 of those who have once been emancipated by marriage, the 
 answer will be that it must depend upon the personal law. 
 A minor who, on marriage, is relieved by the law of his coun- 
 try from all incapacity, will, of course, be as capable for the 
 purpose of changing his domicil as for any other purpose. 
 Such, however, is not the law of England." And perhaps 
 the true view could not be better stated than in his words. 
 
 Dicey'' opposes the former view taken by Westlake, and 
 declares that the reasoning, by which the suggested exception 
 to the disability of the minor is supported, is unsatisfactory 
 and unsound, inasmuch as " it involves some confusion be- 
 tween domicil and residence, and derives no support from the 
 view taken by English law as to an infant's liability on his 
 contracts, which is in no way affected by his marriage." He 
 further holds the existence of the exception itself to be open 
 to the gravest doubt. And certainly, unless we are prepared 
 to hold that the place where a married man resides with his 
 family is universally and necessarily the place of his domicil, 
 tliere seems to be no good reason for attributing to a married 
 minor the capacity to select for himself a domicil which is 
 denied to an unmarried minor. This view is re-enforced by 
 the Massachusetts settlement case of Taunton v. Plymouth, 
 where it was held that a married minor cannot gain a settle- 
 ment in a town by residence there.^ 
 
 6 Priv. Int. L. § 242, p. 274. mouth with the assent of his father, it 
 ' Dom. pp. 106, 107. is supposed that he became emanci- 
 8 15 Mass. 203. The following is pated, so as to he capable of gaining a 
 the opinion of the court, delivered by settlement by himself. Our laws, how- 
 Parker, C. J. : " The pauper for whose ever, know of no such emancipation ; 
 support the action is brought had no or at least do not recognize such conse- 
 settlement in Plymouth, unless her quences of it. The marriage, in this 
 father acquired one there by his resi- case, may have removed the pauper's 
 deuce for a year before the 10th of April, father, Abraham Tisdale, from the oon- 
 1767. But to acquire a settlement by trol of his father, and perhaps have 
 such residence, the party must be of given him a right, as against his father, 
 full age during the term of his resi- to apply all his earnings to the support 
 dence. It is agreed he was not of full of his family. But it did not give him 
 age ; but as he was married at Ply- a capacity to make binding contracts, 
 
 324 
 
§ 235.] DOMICIL OP INFANTS. [CHAP. XI. 
 
 § 233. Other Exceptions suggested. — Potliier mentions ^ 
 several other cases in which the minor is capable of changing 
 his domicil ; namely, (a) when he is provided with a benefice, 
 or a charge, or other employment from which he is not remov- 
 able, and which requires perpetual residence ; or (6) when, 
 with the consent of those under whose power he is, he estab- 
 lishes a house of commerce at a place. This last case has re- 
 ceived some support in Great Britain from the Irish case of 
 Stevens v. McFarland, the grounds of which, however, are 
 somewhat obscure, and the case itself is inconclusive. 
 
 § 234. An Emancipated Minor an Exception under the French 
 Code Civil. — An emancipated minor may, under the modern 
 French law, choose a domicil for himself. The Code pro- 
 vides : 1 " The minor not emancipated shall have his domicil 
 at the home of his father and mother, or tutor ;" and further, 
 by its terms,^ marriage operates as an irrevocable emanci- 
 pation of a minor, and clothes him with large powers in the 
 management of his affairs. By its terms also emancipation 
 may be conferred upon a minor ; ^ but this is revocable.* 
 
 § 235. The Domicil of the Minor follows that of his Father 
 during the Life of the Latter. — The father is the head of the 
 family as long as he lives, and just as his domicil attracts to 
 it that of his wife, so, too, it draws after it, through all of its 
 changes, the domicil of his infant legitimate child.^ This at- 
 
 beyond other infants ; or any political Goods of Patten, 6 Jur. (n. s.) 151 ; 
 or municipal rights, which do not be- Sharpe v. Crispin, L. E. 1 P. & D. 
 long by law to minors. We are all 611 ; Lamar v. Micou, 112 U. S. 452 ; 
 clear, therefore, that by his residence in Hart i*. Lindsey, 17 N. H. 235; Re 
 Plymouth for the time mentioned, with- Hubbard, 82 N. Y. 90 ; Eyal v. Ken- 
 out being warned out, although mar- nedy, 40 N. Y. Superior Ct. 347, 
 ried, he did not gain a settlement in affirmed 67 N. Y. 379 ; Crawford v. 
 that town ; so that the present action Wilson, 4 Barb. 504 ; Ames v, Duryea, 
 cannot be maintained." 6 Lans. 155; Ex parte Dawson, 3 Bradf. 
 1 Intr. aux Cout. d'OrUans, no. 16. 130;Blumenthal«. Tannenliolz, 31 N.J. 
 
 1 Code Civil, art. 108. Eq. 144 ; Guier v. O'Daniel, 1 Binn. 
 
 2 Id. art. 476, and authorities cited 349, note ; School Directors ■». James, 
 in notes of Sirey et Gilbert. 2 Watts & S. 668 ; Foley's Estate, 
 
 3 Id. art. 477 e( seq. and notes of 11 Phila. 47; Metcalfe. Lowther'sEx'rs, 
 Sirey et Gilbert. 56 Ala. 312 ; Kelley's Ex'r o. Garrett's 
 
 * Id. art. 485 et seq. and notes of Ex'rs, 67 id. 304 ; Mears v. Sinclair, 1 
 
 Sirey & Gilbert. W. Va. 185; Wheeler?). Burrow, 18Ind. 
 
 1 Somerville v. Somerville, 5 Ves. 14; McCoUum w. White, 23id. 43 ; Free- 
 
 Jr. 750 ; Forbes v. Forbes, Kay, 341 ; port v. The Supervisors, 41 111. 495 ; 
 
 325 
 
§ 236.] THE LAW OF DOMICIL. [CHAP. XI. 
 
 traction is the "conclusion or inference " -which the law draws 
 from the parental relation, and in general may be said to be 
 wholly independent of the fact of the actual residence of the 
 child. 
 
 So long as the child dwells with and is a member of the 
 family of his father, it goes without saying that they liaTC the 
 same domicil.^ Gibson, C. J., in the leading case of School 
 Directors v. James, says : " No infant, who has a parent sui 
 juris, can, in the nature of things, have a separate domicil. 
 This springs from the status of marriage, which gives rise to 
 the institution of families, the foundation of all the domestic 
 happiness and virtue which is to be found in the world. The 
 nurture and education of the offspring make it indispensable 
 that they be brought up in the bosom, and as a part, of their 
 parents' family ; without which the father could not perform 
 the duties he owes them, or receive from them the service that 
 belongs to him. In every community, therefore, they are an 
 integrant part of the domestic economy ; and the family con- 
 tinues, for a time, to have a local habitation and a name, after 
 its surviving parent's death. The parents' domicil, therefore, 
 is consequently and unavoidably the domicil of the child." 
 
 § 236. Id. even though the Infant does not dwell -with his 
 Father. — The result would be the same, even though father 
 
 Allen ■». Thomason, 11 Humph. 636 ; Gout v. Zimmerman, 5 Notes of Cases, 
 
 Giimmett v. Witherington, 16 Ark. 440 ; Shrewsbury v. Holmdel, 42 N. J. 
 
 377 ; Johnson v. Turner, 29 id. 280 ; Eq. 373 ; Madison v. Mimroe, id. 493, 
 
 Powers V. Mortee, 4 Am. L. Reg. 427 ; and Adams v. Oaks, 20 Johns. 282. 
 Hardy u. De Leon, 5. Tex. 211; Russell ^ This qualification is sometimes 
 
 V. Randolph, 11 id. 460 ; Levy's Case, made in stating the rule, apparently, 
 
 2 Oong. El. Cas. 47 ; Story, Confl. of L. however, for the purpose of guarding 
 
 §46; Wharton, Confl. of L. § 41; Di- against too broad a statement. Thus in 
 
 cey, Uom. pp. 6, 96, 97 ; Westlake, Gout v. Zimmerman, supra. Sir Herbert 
 
 Priv. Int. L. 1st ed. p. 35, rule iii. ; Jenner Fust lays it down that the dom- 
 
 Id. 2d ed. § 237 ; Henry, For. L., cit- icil of an infaait follows that of her father, 
 
 ing Grotius, Int. to the Law of Hoi- " so long as she continues in his family 
 
 land, 1. 2, pt. 26, no. 4 ; Burge, For. & and resides with him." But such quali- 
 
 Col. L. vol. i. p. 39 ; Foote, Priv. Int. ficatiou was not necessary for the deci- 
 
 Jur. p. 9 ; Denizart, verb. Dom. no. 9 ; sion of the case. See also Levy's Case, 
 
 Pothier, Intr. aux Cout. d'Orleans, no. swpra, where it is said that " the domicil 
 
 11; Calvo, Diet. verh. Dom.; Bouhier, of the father is the domicil of the son, 
 
 Obs. sur la Cout. de Bourg. c. 21, p. 383, during the minority of the son, if the 
 
 and u. 22, p. 447, ed. 1742 ; Merlin, son be under the control and direction 
 
 Repertoire, verb. Dom. no. 6. And see of the father." ' 
 
 326 
 
§ 236.J 
 
 DOMICIL OP INFANTS. 
 
 [chap. si. 
 
 and child dwell apart. Although, as we have seen, this was 
 not the rule in the Roman law, it is thoroughly settled in 
 modern law that the domicil of the child follows the domicil 
 of his father. If the child does not migrate with his father, 
 it has never been held that the domicil of the former remains 
 unchanged, neither has it been held that the father can set up 
 for his child a domicil different from his own ; and the lan- 
 guage of the authorities is such and so strong that it seems 
 impossible to put upon it any other construction than that the 
 domicil of the child is necessarily that of the father,^ at least 
 
 1 See, c. CI., Story, Confl. of L. § 46 ; 
 "Westlake, Priv. Int. L. 1st ed. p. 35, 
 rule iii. ; Id. 2d ed. § 237 ; Burge, 
 For. & Col. L. vol. ii. p. 39 ; Dicey, 
 Dom. pp. 6, 96, 97 ; Bouhier, Obs. sur 
 la Cout. de Bourg. c. 21, p. 383, ed. 
 1742 ; Calvo, Diet. verb. Dom. Gray, 
 J., in Lamar v. Micou, quoted infra, 
 § 241; Totten, J., in Allen v. Thom- 
 ason, supra; and Von Hoffman v. Ward, 
 4Eedf. 244. Burge says (Zoc. ci^.): "The 
 domicil of the father, or of the mother, 
 Ijeing a widow, is that of the child, and 
 a change by either of those parents of 
 their former domicil would necessarily 
 operate as a change of the child's dom- 
 icil." Westlake in his first edition lays 
 down the rule : " The domicil of the 
 unmarried infant, boy or girl, follows 
 through all its changes that of the 
 parent from whom it derived its domicil 
 of origin ; " and in his second edition, 
 the following : " The domicil of a legiti- 
 mate or legitimated unmarried minor fol- 
 lows that of his or her father, and the 
 domicil of an unmarried minor horn out 
 of wedlock and not legitimate follows 
 that of his or her mother through all 
 the changes of such respective domicil. " 
 Calvo substantially repeats the latter 
 passage from Westlake. Dicey says : 
 "The domicil of a legitimate or legiti- 
 . mated infant is, during the lifetime of 
 his father, the same as, and changes with, 
 the domicil of his father." Bouhier 
 says : "An infant has no other domicil 
 than that of his father until he attains 
 his majority, when he may select a dom- 
 
 icil for himself" (c. 22, p. 447, ed. 1742). 
 And again : " Although men have the 
 liberty of changing their domicil as it 
 pleases them, nevertheless, minors, who 
 have not attained the age when they 
 may use that liberty, are considered to 
 be always dwelling in the domicil of 
 their fathers, however long they may 
 dwell elsewhere " (c. 21, p. 383). In Von 
 Hoffman v. Ward, 4 Redf. 244, it was 
 held that the domicil of an infant is 
 necessarily that of his father, and that 
 the separation of father and mother, 
 the latter taking the child with herj 
 does not overcome the presumption 
 that the domicil of the father is that of 
 the child. In Allen -o. Thomason it is 
 said ; " If the parents change their 
 domicil, that of the minor necessarily 
 follows it, he being under their will and 
 control, and without any power to choose 
 a domicil for himself." The language 
 of Gray, J., in Lamar v. Micou is per- 
 haps as explicit ivpon this point as any 
 that has been used. With these au- 
 thorities Dr. Wharton is not in entire 
 accord. He says (§ 41): "When the 
 parents' domicil shifts, that of the minor 
 child follows the change. But this 
 rests upon the assumption that the 
 child remains one of the parents' house- 
 hold. If he has been emancipated and 
 by any process has acquired a domicil 
 of his own, the rule does not apply." 
 Conf., also Voet, Ad Pand. 1. 5, t. 1, no. 
 100, quoted infra, § 288. The older con- 
 tinental authorities are apt to maintain 
 the strictly Roman law idea, and there- 
 
 327 
 
§ 238.] THE LAW OP DOMICIL. [CHAP. XT. 
 
 SO long as the former remains in any manner under the 
 guardianship and control of the latter. 
 
 § 237. Id. Possible Exception. — A. case maybe supposed, 
 however, in which it would seem unjust to apply this general 
 rule of derivation ; e. g., where a father has abandoned his child 
 and has emigrated to a foreign country or a distant State. 
 Under extreme circumstances in such a case a court might, 
 and probably would, refuse to seek in a distant land a domioil 
 for the child with a parent who had been faithless to parental 
 duty, or, if it did recognize such domicil, refuse to attach to it 
 the usual legal consequences. And we might possibly go a step 
 farther, and apply the same principle to cases of municipal 
 domicil, where there has been desertion on the part of the 
 father. But such doctrine would be applied, doubtless, only 
 in extreme cases. 
 
 Upon the separation of the father and mother, the domicil 
 of the father continues to be that of their child, even though 
 the latter accompanies and dwells with his mother.^ 
 
 § 238. Upon the Death of the Father the Domioil of the Infant 
 follows that of his Mother. — Upon the death of the father, usu- 
 ally the mother becomes the head of the family ,i and it would 
 seem but natural and proper that henceforth her infant chil- 
 dren should depend upon her for their domicil, at least as long 
 as siie remains an independent person and capable of choosing 
 her own domicil. And this, with certain qualifications and 
 limitations, has generally been admitted, both by Continental 
 and Anglo-American jurists,^ although the question has been 
 somewhat complicated by considering it along with the ques- 
 tion of the power of a guardian to change the domicil of his 
 minor ward. Indeed, little has been said against it, beyond 
 
 fore to hold the infant to be domiciled Bourg. c. 2, p. 384, ed. 1742 ; BouUe- 
 
 where he actually resides, with the as- nois, Diss, de la Contrar. des Lois, qusest. 
 
 sent of his parents. 2, p. 61; Pothier, Intr. aux Cout. d'Or- 
 
 1 Von HofTman v. Ward, supra. leans, no. 18 ; Burge, For. & Col. L. 
 
 1 Pothier, Intr. aux Cout. d'Orldans, vol. i. p. 39 ; Westlake, Priv. Int. L. 1st 
 no. 18; Dedham o. Natick, 16 Mass. ed. p. 35,mleiii.; Id.2ded. §238; Dicey, 
 13,5 ; Burrell Township v. Pittsburg, 62 Dom. pp. 6 and 96-100 ; Story, Confl. 
 Pa. St. 472. of L. § 46 and §§ 505, 506 ; Wharton, 
 
 2 Voet, Ad Pand. 1. 5, t. 1, no. 100 ; Confl. of L. § 41. But see amtra. Bar, 
 Bynkershoek, Qutest. Jur. Priv. 1. 1, § 31, p. 97 (Gillespie's trans, p. 105). 
 0. 16 ; Bouhier, Obs. sur la Cout. de See also Denizart, verb. Dom. no. 9. 
 
 328 
 
§ 238.J 
 
 DOMICIL OF INFANTS. 
 
 [chap. XI. 
 
 the denial implied in the assertion by some jurists that the 
 infant child retains the domicil of the father after the death 
 of the latter .3 But this assertion has usually been made either 
 carelessly, or in view of the fact of the father surviving the 
 mother. 
 
 John Voet affirms the power of the mother as well as the 
 father to change the domicil of the infant child : " Plane si 
 etiamnum minorennis sit, patre vel matre vidua domicilium 
 mutante, filium etiam videri mutasse, si et ipse translatus sit, 
 nee ex prioi'is sed novi domicilii, a patre matreve recenter 
 constituti, jure censeri in dubio debere, rationis est."* So 
 also does Pothier,^ speaking with his usual clearness and 
 force. After denying the power of the guardian to change 
 the domicil of his ward, he says : " It is not the same with the 
 mother ; the parental power being, in our law, different from 
 that of the Roman law, common to the father and mother, the 
 mother, after the death of her husband, succeeds to the rights 
 and the quality of head of the family which her husband had 
 with regard to their infant children. Her domicil, wherever 
 
 ' Harkins v. Arnold, 46 Ga. 656 ; 
 Grimmettc. Witherington, 16 Ark. 377; 
 Johnson o. Turner, 29 id. 280 ; Hardy 
 V. De Leon, 5 Tex. 211 ; Trammell v, 
 Trammell, 20 id. 406 ; Powers v. Mor- 
 tee, 4 Am. L. Reg. 427. Some of these 
 authorities, however, distinctly admit the 
 power of the mother to change the dom- 
 icil of her infant child. See particu- 
 larly Harkins v. Arnold and Powers v. 
 Mortee. Moreover, they all directly or 
 indirectly rely upon the following pas- 
 sage from Story ; " Minors are generally 
 deemed incapable, propria Tnarte, of 
 changing their domicil during their 
 minority, and therefore they retain the 
 domicil of their parents ; and if the 
 parents change their domicil, that of 
 the infant follows it ; and if the father 
 dies, his last domicil is that of the in- 
 fant children " (Confl. of L. § 46). Taken 
 altogether, this passage hardly warrants 
 the inference that the learned commen- 
 tator intended to deny the power of the 
 surviving mother to affect the domicil of 
 her infant child. If such, however, was 
 
 his meaning, he is not borne out by the 
 authorities which he cites, among whom 
 are Pothier and John Voet, who dis- 
 tinctly maintain the opposite view ; as 
 also does the learned editor of the eighth 
 edition of Story's work, p. 48, note (c). 
 Denizart {verb. Dom. no. 9) apparently 
 denies the power of the widow (see infra, 
 § 251.) 
 
 4 Ad Pand. 1. 5, t. 1, no. 100. He 
 qualifies this, however, by holding that 
 the translation of domicil must be with- 
 out fraudulent design to alter the per- 
 sonal succession of the infant. 
 
 5 Intr. aux Gout. d'Orldans, no. 18. 
 He adds : "There would be fraud if 
 there appeared no other reason for the 
 translation than that of procuring some 
 advantages in the movable succession of 
 her infants." Bouhier, however, holds 
 that father, mother, or other ascendant, 
 may change the domicil of a minor, be- 
 cause, by reason of their tender love, 
 every fraudulent presumption is ex- 
 cluded (c. 22, p. 442, ed. 1742). 
 
 329 
 
§ 239.] THE LAW OF DOMICIL. [CHAP. XI. 
 
 she determines to transfer it without fraud, ought then to be 
 that of her infant children until they are able to choose one 
 for themselves." 
 
 § 239. Id. British Authorities — Potinger v. 'Wightman. — In 
 England the question arose in the case of Potinger v. Wight- 
 man 1 at the Rolls before Sir William Grant, who held the 
 mother competent to change the domicil of her children. It 
 is true that she had been appointed, by the court of the dom- 
 icil of the children, their guardian. His Honor, however, 
 seems to have laid little stress upon this fact, but to have held 
 the mother's competency qua mother. The facts were that 
 the father, a native of England, died, domiciled in the Island 
 of Guernsey, leaving a widow (pregnant of a child, who was 
 afterwards born) and seven infant children, living at the time 
 of his decease, four of them being his children by a former 
 marriage. The widow was appointed, by the Royal Court of 
 Guernsey, guardian of her own infant children, and after- 
 wards removed to England, bringing them with her. Upon 
 the subsequent death of two of her children in infancy, the 
 question arose as to the distribution of their personal estate, — 
 whether it was distributable according to the law of Guernsey 
 where their father was domiciled at the time of his death, or 
 according to that of England where their mother had subse- 
 quently become domiciled. In delivering his opinion, the 
 learned Master of the Rolls said : " Here the question is, 
 whether, after the death of the father, children remaining 
 under the care of the mother follow the domicil which she 
 may acquire, or retain that which their father had at his 
 death, until they are capable of gaining one by acts of their 
 own. The weight of authority is certainly in favor of the 
 former proposition ; it has the sanction both of Voet and 
 Bynkershoek ; the former, however, qualifying it by a con- 
 
 1 3 Mer. 67. The case was argued Woodend v. Inhabitants of Paulspury, 
 
 upon the foreign authorities and the 2 Ld. Ray. 1473 ; s. o. Stra. 766 ; Eex 
 
 cases of settlement under the English v. Inhabitants of Barton Turfe, Burr. 
 
 poor-laws. Among others the following Sett. Cas. 49 ; Rex v. Inhabitants of 
 
 cases hold that, after the death of the Oulton, id. 64 ; Cuniuer v. Milton, 
 
 father, the settlement of the surviving 3 Salk. 259 ; Parish of St. George v. 
 
 mother is communicated to her unernan- Parish of Catharine, 1 Sett. Cas. 72. 
 cipated minor children: Inhabitants of 
 
 330 
 
§ 239.] DOMICIL OP INFANTS. [CHAP. XI. 
 
 dition, that the domicil shall not have been changed, for the 
 fraudulent purpose of obtaining an advantage by altering the 
 rule of succession. Pothier, whoso authority is equal to that 
 of either, maintains the proposition as thus qualified. There 
 is an introductory chapter to his treatise on the Custom of 
 Orleans, in which he considers several points that are com- 
 mon to all the customs of Prance, and, among others the law 
 of domicil. He holds, in opposition to the opinion of some 
 jurists, that a tutor cannot change the domicil of his pupil ; 
 but he considers it as clear that the domicil of the surviving 
 mother is also the domicil of the children, provided it be not 
 with a fraudulent view to their succession that she shifts the 
 place of her abode; and he says that such fraud would be 
 presumed, if no reasonable motive could be assigned for the 
 change. There never was a case in which there could be less 
 suspicion of fraud than the present. The father and mother 
 were both natives of England ; they had no long residence in 
 Guernsey ; and, after the father's death, there was an end of 
 the only tie which connected the family with that island. 
 That the mother should return to this country, and bring her 
 children with her, was so much a matter of course, that the 
 fact of her doing so can excite no suspicion of an improper 
 motive ; and I think, therefore, the Master has rightly found 
 the deceased children to have been domiciled in England. It 
 is consequently by the law of this country that the succession 
 to their personal property must be regulated." 
 
 This is the leading case upon the subject, and was declared 
 by Lords Lyndhurst and Campbell, in Johnstone v. Beattie,^ 
 to be conclusive as to the mother's power to change the domi- 
 cil of her minor children. The question has never since been 
 
 2 10 Cl. & F. 42. In the course of the law of England, — unless there is 
 
 the argument Lord Lyndhurst, inter- some opposite decision." None, how- 
 
 rupting counsel who was attempting ever, was adduced. Lord Campbell in 
 
 to explain Potiuger v. Wightman upon delivering his opinion said (p. 138) : 
 
 the ground that the mother was also " I think that the case of Potinger v. 
 
 the guardian, said (p. 66) : "The ease Wightman must be taken conclusively 
 
 of Potinger v. Wightman appears to to have settled the general doctrine, 
 
 have been well argued 'and well con- that if after the death of the father an 
 
 sidered, and must be held conclusive as infant lives with her mother, and the 
 
 to the mother's power to change the mother acquires a new domicil, it is 
 
 domicil, — which is a novel point in communicated to the infant." 
 
 331 
 
§ 241.J THE LAW OF DOMICIL. [CHAP. XI. 
 
 re-opened in England. Lord Penzance, however, took occa- 
 sion to say in the late case of Sharpe v. Crispin,^ that, " The 
 better opinion seems to be that, after the father's death, the 
 mother may, by changing her domicil, affect the domicil of 
 her minor children ; " thus apparently going somewhat be- 
 yond the doctrine of Potinger v. Wightman, if the effect of 
 that decision be strictly limited to the facts of the case, — 
 namely, when the child accompanies the mother to her new 
 place of abode. 
 
 In Scotland, in Arnott v. Groom,* the power of the mother 
 was affirmed under circumstances somewhat similar to those 
 of Potinger v. Wightman. The father, a Scotchman by birth, 
 was an officer in the service of the East India Company, and 
 therefore had an Anglo-Indian domicil. Upon his death his 
 wife returned from India to Scotland, taking with her her in- 
 fant daughter, aged about one year. The domicil of the child 
 was subsequently held to be Scotch. 
 
 § 240. Id. American Authorities. — The mother's power has 
 been repeatedly affirmed in the American decisions,^ the latest 
 expression being by the Supreme Court of the United States, 
 in Lamar v. Micou, where Gray, J., in delivering the opinion 
 of the court, says : " As infants have the domicil of their 
 father, he may change their domicil by changing his own ; 
 and after his death the mother, while she remains a widow, 
 may likewise, by changing her domicil, change the domicil 
 of the infants ; the domicil of the children, in either case, 
 following the independent domicil of their parent." 
 
 § 241. Id. Does the Domicil of the Infant necessarily follcw 
 that of his Wido'wed Mother, or may the Latter change hers v^ith- 
 out affecting that of her Infant Child? — But how far the relation 
 between the domicil of the mother and that of her child ex- 
 
 ' L. E. 1 P. & D. 611. V. Arnold, 46 Ga. 656 ; Hears v. Sin- 
 
 * 9 D. (Sc. Sess. Cas. 2d ser. 1846) clair, 1 W. Va. 185 ; Allen v. Thoma- 
 
 112. son, 11 Humph. 536 ; Lacy i). Williams, 
 
 1 Lamar v. Mlcou, 112 U. S. 452 ; 27 Mo. (6 Jones), 280 ; Succession of 
 
 Dedham v. Natick, 16 Mass. 135; Ryal Lewis, 10 La. An. 789 ; Powers v. Mor- 
 
 V. Kennedy, 40 N. Y. Superior Ct. 347; tee, 4 Am. L. Reg. 427. See also 
 
 BrownB. Lynch, 2 Bradf. 214; ^a;porfe Bradford v. Lunenburgh, 5 Vt. 481, 
 
 Dawson, 3 id. 130 ; School Directors and Oxford v. Bethany, 19 Conn. 232. 
 V. James, 2 Watts & S. 568 ; Harkins 
 
 332 
 
§ 241.J 
 
 DOMICIL OF INFANTS. 
 
 [chap. XI. 
 
 tends does not seem to be well settled. The language of 
 Gray, J., above quoted, and similar language used by others, 
 seems to place the father and the surviving mother on the 
 same footing with respect to the doihicil of their infant chil- 
 dren.i But, as we have seen, the domicil of the minor child 
 follows that of his father, although the child does not accom- 
 pany his father to the new abode of the latter. Would the 
 same doctrine apply to the case of the surviving mother ? In 
 other words, is there anything in the relation of mother and 
 child which raises a conclusive presumption of identity of 
 domicil, notwithstanding the fact that they dwell apart ? It 
 has been said by respectable authority ^ that, " Where nothing 
 
 1 Sharpe v. Crispin, supra; Lamar v. 
 Micou, supra ; Kyal v. Kennedy, su- 
 pra ; School Directors v. James, supra ; 
 Mears v. Sinclair, sit^ra; Allen K.Thoma- 
 EOTijSupra ; Powers v. Mortee, supra; Po- 
 thier, Intr. aux Gout. d'Orleans, no. 18 ; 
 Burge, vol. i. p. 38 ; see also Story, § 46. 
 
 ^ Brown i>. Lynch, supra. The facts 
 were, that after the death of the father, 
 who was domiciled in H^ew York, the 
 mother returned to her former home in 
 Connecticut, taking with her their infant 
 child. She subsequently married and 
 removed with her second husband to 
 New York, leaving her child with his 
 grandmother in Connecticut. Upon 
 these facts the Surrogate (Bradford) 
 properly held the child to be domiciled 
 in the latter State. The reasoning, 
 however, by which he reached this con- 
 clusion is peculiar, and cannot be recon- 
 ciled with that of other authorities 
 hereafter to be referred to (infra, § 244, 
 and notes), inasmuch as his reasoning 
 is based upon the power ( which for the 
 purpose of his argument he assumes) 
 of the re-married mother to fix the 
 domicil of her infant child; whereas the 
 true ground appears to be that the dom- 
 icil of the child remains m statu quo, 
 ex necessitate, because there is no longer 
 any independent domicil for it to follow. 
 Following is the opinion of the Surro- 
 gate : " There has been much learned 
 discussion in relation to the residence 
 of minors, especially among the civilians. 
 
 Authorities of great weight and distinc- 
 tion have differed materially as to the 
 manner in which a change of the mi- 
 nor's domicil may be effected, particu- 
 larly as to the power of the guardian, 
 or of the mother after the decease of 
 the father (Phillimore on Domicil, 
 § 57). I have no doubt, however, that 
 the weight of modern authority is in 
 favor of the proposition that the sur- 
 viving mother may change the domicil 
 of her minor children, provided it be 
 without fraudulent views to the succes- 
 sion of their estate. This power did 
 not exist in the Roman law, which may 
 account for the resistance it has met. 
 It is supported by the authority of 
 Bynkershoek, Voet, and Pothier, Sir 
 William Grant, Justice Story, and Chan- 
 cellor Kent (Potinger v. Wightman, 3 
 Merivale, 67; 2 Kent's Comm. pp. 227, 
 430; Surge's Comm. 1, p. 39). To state, 
 however, that the residence of the 
 mother is necessarily the residence of 
 the child is too broad a position ; for 
 the power of effecting the change may 
 very well exist without being exercised, 
 and the mother's residence may be 
 altered, while at the same time she re- 
 fuses to alter that of the child. Where, 
 however, nothing more appears than 
 the removal in fact of the mother and 
 her children from one abode to another, 
 the presumption would be that the 
 domicil of the child has followed that 
 of the parent. Applying these priu- 
 
 833 
 
§ 241.J 
 
 THE LAW OF DOMICIL. 
 
 [chap. XI. 
 
 more appears than the removal in fact of the mother from 
 one abode to another, the presumption would be that the dom- 
 
 ciples to the present case, it appears 
 that the residence of the minor, Thomas 
 E. Lynch, which, at the decease of his 
 father, was in the city of New York, 
 hecame changed to the State of Con- 
 necticut by the removal of his mother. 
 The family establishment in this city 
 was broken up, and she returned to the 
 residence of her mother, the place of 
 the nativity, and the State where she 
 and her husband were domiciled at the 
 time of their marriage. There certainly 
 could have been no doubt then, and 
 during the years that elapsed before 
 her second marriage, that the child re- 
 sided in Connecticut. That the mother 
 should return to her home, after the 
 only tie was dissolved which had bound 
 her to ■■'■ residence in New York, was 
 the most natural thing in the world. 
 All her interests and attachments were 
 manifestly centred there ; and after 
 her removal, that must undoubtedly 
 be considered as the place of her per- 
 manent abode. The domicil she had 
 acquired in New York, by the occasion 
 of the removal of her husband here 
 after marriage, ceased, and her original 
 domicil was restored. The case is ob- 
 viously stronger than a change of dom- 
 icil to some entirely new place of abode. 
 Bnt she marries again, and leaves Hart- 
 ford to reside at New York with her 
 husband. It is a universal maxim that 
 the wife takes the domicil of the hus- 
 band (Digest, 50, 1, 37 ; Code, 12, 1, 
 13, 10, 40, 9 ; Warrender v. Warrender, 
 9 Bligh, 89). But was the residence 
 of the minor changed by that act ? In 
 the first place, if it were true that the 
 domicil of the minor follows that of the 
 surviving mother, mi her second mar- 
 riage, it seems to me plain that it is 
 not a matter of legal necessity. The 
 mother is not compelled to change the 
 residence of her child. She may, from 
 wise and prudential motives respecting 
 the comfort, happiness, or education of 
 her offspring, determine not to change 
 his residence. And if such determina- 
 
 334 
 
 tion be evinced and acted upon, the in- 
 ference that might be drawn, that the 
 domicil of the child followed that of 
 the parent, is rebutted and destroyed. 
 The ordinary presumption of law (if it 
 existed in such a case) would give way 
 before express and positive acts subver- 
 sive of aU inferences and presumptions. 
 If, while the mother continues in her 
 widowhood, it is within the scope of 
 the parental authority, when she changes 
 her own domicil, not to change that of 
 her child, the moral reasons for such a 
 power would be much stronger in the 
 event of a second marriage, supposing 
 she still retained any capacity to effect 
 a change of her own domicil. But she 
 does not. By the act of marriage she 
 takes the domicil of the husband ; and 
 to hold that the domicil of the child is 
 drawn after hers, would be to establish 
 an arbitrary train of sequences unsup- 
 ported by reason. The mother subjects 
 herself to -the control of another hus- 
 band, and adopts his home ; and when 
 she ceases to occupy an independent 
 position as the head of the family, she 
 cannot delegate to another a personal 
 trust residing in her for the welfare of 
 her children. I have no hesitation in 
 saying that the proposition is unsound 
 which maintains, as a necessaiy legal 
 consequence, that the domicil of the 
 child follows that of the step-father. 
 Children, says Potliier, have the domi- 
 cil their mother establishes, without 
 fraud, so long as, remaining in widow- 
 hood, she preserves the quality of chief 
 of the family ; but when she re-marries, 
 and thus acquires the domicil of her 
 second husband, into whose family she 
 passes, the domicil of the second hus- 
 band does not become that of the chil- 
 dren, who do not pass into the family 
 of their step-father, but preserve their 
 domicil where their mother had hers 
 before she re-manied, as they would 
 have preserved it had she died (Po- 
 thier, Intr. aux Cout. p. 9, § 19 ; see 
 Inhabitants of Freetown v. Inhabitants 
 
§ 241.] 
 
 DOMICIL OP INFANTS. 
 
 [chap. XI. 
 
 icil of the child has followed that of the parent." But this 
 appears to be nothing more than a presumption of fact, for in 
 the same case it is said : " To state, however, that the resi- 
 dence of the motlier is necessarily the residence of the child, 
 is too broad a position ; for the power of effecting a change 
 may very well exist without being exercised, and the mother's 
 residence may be altered, while at the same time she refuses 
 to alter that of the child." But in this case the infant did 
 accompany his widowed mother in her change of residence, 
 and his domicil was held to have followed hers. The state- 
 ment above quoted must be looked upon, therefore, as a mere 
 statement of opinion, without reference to the facts of the 
 case. 
 
 By other authorities, however, the dependence of the domi- 
 cil of the child upon that of his widowed mother has been 
 affirmed, with the proviso that the child accompany the mother 
 to her new place of abode.^ But is this essential, or is it 
 
 of Taunton, 16 Mass. B. 52; School 
 Directors v. James, 2 Watts & Serg. 
 568). It may be said that- tliese prin- 
 ciples apply only to the domicil so far 
 as relates to the question of succession, 
 and that the forum of the minor is that 
 of the surviving mother or guardian. 
 Even if that were so, I think that on 
 the decease of the mother it was restored 
 to the place of the minor's domicil. 
 But, however that may be, the jurisdic- 
 tion of the Surrogate expressly depends, 
 by the terms of the statute, on the resi- 
 dence of the minor. Here, in the life- 
 time of the mother, the court of the 
 place where the minor had his domicil 
 appointed the step-father guardian; and 
 neither the mother nor guardian ever 
 changed the residence of the child, in 
 fact, or applied to the forum of the 
 parents for judicial action. The actual 
 and the legal domicil of the minor, and 
 the forum appealed to, all unite to fix 
 the place of residence in Connecticut, 
 and not in this State. The mother, on 
 her second marriage, came to an under- 
 standing with her husband that the 
 boy should make his home with the 
 grandmother, in whose hou.se he had 
 
 been living; and the subsequent con- 
 duct of the parties was invariably in 
 harmony with this understanding. The 
 arrangement was in consonance with 
 the law and the lights of the minor, 
 and was never disturbed. I am there- 
 fore of opinion that, on the marriage 
 of his mother, the child's residence was 
 not, by legal consequence, changed from 
 Connecticut to New York, because his 
 mother acquired the domicil of her sec- 
 ond husband ; and that if such change 
 would have been effected in the absence 
 of a contrary arrangement, it would 
 have been prevented by the acts and 
 conduct of all the parties, and the con- 
 tinued residence in fact, of the minor, 
 in the State of Connecticut. The let- 
 ters of guardianship issued by me must 
 therefore be revoked." 
 
 * S. g., Harkins v. Arnold, 46 Ga. 
 656 ; Yoet, Ad Pand. 1. 5, 1. 1, no. 100 ; 
 Wharton, § 41, and apparently West- 
 lake, 1st ed. p. 35. Upon this point Di- 
 cey, pp. 98, 99, thus enlarges: "Difficult 
 questions may, however, be raised as to 
 the effect of a widow's change of domicil 
 on that of her children, where she is not 
 their guardian. Such questions may 
 
 335 
 
§ 241.] 
 
 THE LAW OP DOMICIL. 
 
 [chap. XI. 
 
 stated merely out of an abundance of caution ? Can she by 
 carrying with her, or leaving behind her, her minor child, 
 change or not his domicil, as she sees fit, while herself ac- 
 quiring a new one ? No direct answer has been given to this 
 question by any authoritative decision, and the conflicting 
 language of the courts, and of text-writers, leaves it an open 
 one, although the weight of authority seems to be in the neg- 
 ative.* But furthermore, assuming that she can leave in 
 statu quo the domicil of her Infant child while changing her 
 own, can she change his by sending him to reside at some 
 new place, without at the same time changing her own ? 
 The two cases are not identical ; for it will readily be seen 
 that it is one thing for an English mother to leave her child 
 domiciled in England, while she herself changes her domicil 
 to France or one of the American States, or for a Pennsylva- 
 
 refer to tte two different cases of in- 
 fants who reside, and of infants who do 
 not reside, with their mother. First, 
 Suppose that an infant resides with his 
 mother, who is not his guardian. The 
 question may he raised whether the 
 domicil of the infant is determined by 
 that of the mother or hy that of the 
 guardian. No English case decides the 
 precise point, but it may be laid down 
 with some confidence that (even if a 
 guardian can in any case change the 
 domicil of his ward) yet the domicil of 
 a child living with his mother, while 
 still a widow, will be that of the mother 
 and not of the guardian. Secondly, 
 Suppose that an infant resides away 
 from his mother, who is not his guar- 
 dian. The question whether it is on 
 his mother or his guardian that the 
 change of the child's domicil depends, 
 presents some difficulty. In the ab- 
 sence of decisions on the subject, it is 
 impossible to give any certain answer 
 to the inquiry suggested. It is quite 
 possible that, whenever the point calls 
 for decision, the courts may hold that 
 there are circumstances under which an 
 infant's domicil must be taken, even in 
 the lifetime of the mother, to be changed 
 by the guardian. These questions, and 
 others of a similar character, really raise 
 
 336 
 
 the general inquiry whether, as a matter 
 of law, Sn infant's domicil is identified 
 with that of the infant's widowed mother, 
 to the same extent to which itis identified 
 with that of his father during the father's 
 lifetime. It may be doubted whether 
 the courts would not under several cii^ 
 cumstances hold that an infant, in spite 
 of a change of domicil on the part of 
 the child's mother, retained the domicil 
 of his deceased father. Still, in general, 
 the rule appears to hold good that the 
 domicil of an infant whose father is 
 dead changes with the domicil of the 
 child's mother. " 
 
 * Additional strength is given to the 
 negative by the position taken by the 
 authorities hereafter to be referred to ; 
 namely, that a minor does not take the 
 domicil which his mother gains by a 
 second marriage, even though he follows 
 her to her new home and continues to 
 reside with her there. The inference 
 thence to be drawn is that the question 
 whether the domicil of a minor, who 
 has lost his father, is the same as that 
 of his mother, does not depend upon the 
 fact of their residing together, but upon 
 something else, — to wit, probably the 
 relation of the mother to her infant 
 child as the head of the family to which 
 he belongs. 
 
§ 242.] DOMICIL OF INFANTS. [CHAP. XI. 
 
 nia mother to leave her child domiciled in that State, while 
 she herself removes to Massachusetts ; and quite another for 
 a mother, by sending her child to another State or country, 
 without herself accompanying him, to confer upon him a 
 domicil there. In the one case she would be merely leav- 
 ing in statu quo a dependent domicil derived by the child 
 from herself or his father, and in the other she would be con- 
 ferring upon him an entirely new domicil, and one which 
 would be independent of the domicil of any one else. The 
 latter position has, the writer believes, never been affirmed 
 with respect to the father, and a fortiori can scarcely be held 
 with respect to the mother. 
 
 § 242. Id. Is the Qualification that the Mother must " act 
 without Fraud," a Valid One? — Another qualification is fre- 
 quently put by the authorities. It is frequently said that the 
 surviving mother may change the domicil of her children, if 
 she act without fraud. This qualification is stated by numer- 
 ous jurists, and in many of the cases ; ^ and the particular 
 fraud, which is usually feared and pointed out to be guarded 
 against, is a fraudulent attempt to alter the distribution of 
 the infant's personal estate. The language which they use is 
 applicable as well to the father as to the mother. But the 
 authorities differ among themselves as to the extent to which 
 such fraudulent intent must be shown, Pothier, perhaps, tak- 
 ing the most extreme position of any. He says : " There 
 would be fraud if there should appear no other reason for the 
 translation of her domicil than that of procuring some advan- 
 tage in the personal succession of her infants;" thus, appar- 
 ently, throwing the burden of proof, to show good faith on the 
 part of the mother, upon those alleging the change of the 
 child's domicil. John Voet puts the case of a minor who is 
 in ill health at the time of his removal, and holds that such 
 circumstance would of itself be indicative of fraud, if by the 
 change of domicil the succession is altered. 
 
 1 Potinger v. Wightman, supra ; 39. Bouhier holds, however, that on ac- 
 
 School Directors v. James, supra; Brown count of the " teudresse " of the parent 
 
 V. Lynch, supra ; Eyal v. Kennedy, sm- for the child, fraud is not to be pre- 
 
 pra: Harkins v. Arnold, mipta ; Carlisle sumed (c. 22, p. 442, ed. 1742). Dicey 
 
 V. Tuttle, supra; Voet, supra ; Pothier, states the qualification, but considers its 
 
 supra ; Burge, For. & Col. L. vol. 1. p. existence open to doubt. Dom. p. 104. 
 
 22 337 
 
§ 244.J THE LAW OF DOMICIL. [CHAP. XI. 
 
 § 243. Id. id. — But with submission to the great learning 
 and ability of the jurists who have held the opinion just re- 
 ferred to, it seems to the writer all important to distinguish 
 between a change of domicil and the legal consequences of 
 such a change. For it is one thing to hold that a change has 
 taken place, and another thing to restrain the legal conse- 
 quences of such change in the interests of justice, so that the 
 fraud which was designed shall not be consummated. Suppose 
 that, for the purpose of affecting the personal succession, a 
 mother carries with her her infant child into another State or 
 a foreign country, and the child, instead of dying there, should 
 live and grow up to maturity. Can it be doubted that his 
 general legal capacity would be determined by the laws of 
 the new place ? Can it be doubted that his personal prop- 
 erty would be taxable there, etc. ? If negative answers are 
 given to these questions, they must be given upon the as- 
 sumption that a change of domicil has taken place ; and yet, 
 as we have seen, a person cannot have a separate domicil for 
 each particular purpose to which the principle of domicil is 
 applicable. It seems, therefore, more logical to hold that, 
 while courts would interpose to defeat the fraudulent design 
 with which a parent had attempted to change the domicil of 
 his or her infant child, they would not do so upon the ground 
 that the change of domicil had not been accomplished, but 
 rather upon the ground that, in the particular case, the usual 
 legal effect could not be given to the change of domicil, so as 
 to assist in the perpetration of the fraud. 
 
 § 244. The Power of the Mother does not extend beyond her 
 Widowhood. — But the surviving mother is capable of chang- 
 ing the domicil of her infant children only during her widow- 
 hood.i Upon her re-marriage, she loses her headship of the 
 
 1 Lamari). Micou, 12U. S. 4o2;Ilyal of L. § 41. See also the following 
 v.KermeAy, supra; Ex parte 'Da.wsoi^yZ settlement cases: Bradford v. Lunen- 
 Bradf. 130 ; School Directors v. James, burgh, 5 Vt. 481 ; Freetown v. Tann- 
 supra; Harkins v. Arnold, supra, per ton, 16 Mass. 52; Walpole v. Marble- 
 Montgomery, .1. ; Johnson v. Copeland, head, 8 Cash. 528 ; Oxford v. Bethany, 
 35 Ala. 521 ; Mears v. Sinclair, supra ; 19 Conn. 229« Brown v. Lynch, supra, 
 Allen V. Thomason, supra ; Pothier, is also an authority on this point to the 
 Intr. aux Cout. d'OrUans, no. 19 ; Phil- extent of holding that the domicil of 
 limore, Dom. no, 62 ; Burge, For. and the child does not necessarily follow 
 Col. L. vol. i. p. 39 ; "Wharton, Confl. that of his re-married mother. In 
 
 338 
 
§ 244.] DOMICIL OP INFANTS. [CHAP. XI. 
 
 family of her former husband, and passes under the power of 
 her second husband. Her domicil merges in his, and she is 
 no longer legally competent to exercise the choice necessary 
 for the establishment of a domicil. Her domicil is now itself 
 derivative, and is, therefore, no longer capable of being com- 
 municated to her minor children. They retain the last domi- 
 cil which they had during her widowhood.^ Says Pothier : 
 " But when she re-marries, although she acquires the domicil 
 of her second husband, into whose family she passes, this 
 domicil of her second husband will not be that of her infant 
 children, who do not pass, as she does, into the family of their 
 step-father. This is why they are considered to continue to 
 have their domicil at the place where their mother had hers 
 before she re-married, just as they would be considered to pre- 
 serve it if she were dead." Gibson, C. J., in the case already 
 quoted from, says: "A husband cannot properly be said to 
 stand in the relation of a parent to his wife's children by a 
 previous marriage, where they have means of support which 
 are independent of the mother, in whose place he stands for 
 the performance of her personal duties ; because a mother is 
 not bound to support her impotent children so long as they 
 are of ability to support themselves. Neither can they derive 
 the domicil of a subsequent husband from her, because her 
 new domicil is itself a derivative one, and a consequence of 
 the merger of her civil existence. Her domicil is his, because 
 she has become a part of him; but the same thing cannot 
 
 Wheeler v. Hollis, 19 Tex. 522, Whee- new place of atode. To the same effect 
 
 ler, J., takes the contrary view, and see Succession of Winn, 3 Rob. (La. ) 
 
 argues strongly and at length in favor 303, where the mother, who had been 
 
 of the power of the re-married mother confirmed as natural tutrix of her minor 
 
 to change the domicil of her minor child children, re-married, and the court held 
 
 by her former marriage. In that case, that both the mother herself and her 
 
 however, the step-father was the guar- minor children acquired immediately, 
 
 dian, and the court appears to put its by the very fact of the marriage, a 
 
 decision upon the combined power of domicil in the parish of the second hus- 
 
 the guardian and the re-married mother band. But this was put upon the pe- 
 
 to change the domicil of the child. See culiar provisions of the Louisiana Code. 
 infra, § 258, note 6. See also Succession ^ Lamar v. Micou, supra ; School Di- 
 
 of Lewis, 16 La. An. 789, 'where it was rectors o. James, supra ; Pothier, Intr. 
 
 held that a re-man-ied mother, who was aux Gout. d'OrUans, no. 19 ; Burge, 
 
 also the guardian of her child, might supra; and generally the authorities 
 
 change the domicil of the latter. The cited in the last note, except Wheeler w. 
 
 child accompanied her mother to her Hollis and the Louisiana cases. 
 
 339 
 
§ 245.] THE LAW OF DOMICIL. [CHAP. XI. 
 
 be said of her children. Having no personal existence for 
 civil purposes, she can impart no right or capacity which de- 
 pends on a state of civil existence; and the domicil of her 
 children continues, after a second marriage, to be what it 
 was before it." In a West Virginia case ^ it was held that 
 the domicil of the children of a re-married mother did not 
 follow hers, even though she had been appointed by the will 
 of their father their testamentary guardian. 
 
 It makes no difference that they continue to reside with 
 her ; * she has passed into another family, into which they do 
 not follow her ; and although they may reside with the family 
 of their step-father, they do not become a part of it, and are 
 not subject mediately or immediately to his control. 
 
 § 244 a. Domicil of Illegitimate Children. — With respect tO 
 the illegitimate child, it is not only true that he takes his 
 domicil of origin from his mother, but also that his domicil 
 follows hers throughout all its changes, at least so long as 
 she remains unmarried.^ In France, however, the domicil of 
 the natural child is held to depend upon his recognition by 
 his parents, and follows the domicil of the parent who recog- 
 nizes him.^ 
 
 § 245. Upon the Death of both Parents, an Infant may acquire 
 the Domicil of a Grandparent. — Upon the death of his parents, 
 the infant usually retains the last domicil which they, or the 
 survivor of them, had ; ^ but this is not always true. In the 
 
 * Mears v. Sinclair, sup7-a. de Code Civil, t. 1, p. 39 ; Demolom'be, 
 
 * Lamar v. Mioou, supra ; Johnson Cours de Code Napoleon, t. 1, no. 361 ; 
 V. Copeland, supra ; Meara v. Sinclair, Laurent, Principes de Droit Civil Fran- 
 supra; Harkins v. Arnold, supra; Al- jais, t. 2, no. 88; Mersier, Traits, etc., 
 len V. Thomason, supra. des Actes de I'^^tat Civil, no. 138. 
 
 ' Savigny, System, etc. § 353 (Gutli- i School Directors v. James, supra ; 
 
 rie's trans, p. 100) ; Story, Confl. of L. Be Lower Oxford Township Election, 
 
 § 46 ; Westlake, Priv. Int. L. 1st ed. 11 Phila. 641 ; Matter of Afflick's 
 
 nos. 35, 36 ; Dicey, Dom. pp. 4, 6, 97, Estate, 3 MacAr. 95 ; Harkins v. Ar- 
 
 98 ; Wharton, Confl. of L. 37. This nold, supra ; Hiestand v. Kuns, 8 
 
 subject has been discussed in a number Blackf. 345 ; "Warren v. Hofer, 13 Ind. 
 
 of American settlement cases, but as 167 ; Powers v. Mortee, 4 Am. L. Eeg. 
 
 the discussion was put almost exclu- 427 ; Grimmett v. Witherington, 16 
 
 sively upon statutory grounds, they can Ark. 377 ; Johnson v. Turner, 29 id. 
 
 hardly be said to furnish much author- 280 ; Hardy v. De Leon, 5 Tex. 211 ; 
 
 ity upon the general principle. Trammell v. Trammell, 20 id. 406 ; 
 
 2 Duranton, Cours de Droit Fran- Story, Confl. of L. § 46 ; and see au- 
 
 5ais, t. 1, no. 368 ; Delvincourt, Cours thorities cited supra, § 238, note 3. 
 
 S40 
 
§ 245.] DOMICIL OP INFANTS. [CHAP. XI. 
 
 late case of Lamar v. Micou^ (on petition for a re-hearing), 
 tlie Supreme Court of the United States held the domicil of 
 infants, whose parents were both dead, to be changed by their 
 going into another State to reside with their grandmother. 
 Gray, J. (having held, when the case was previously before 
 the court, that the ward derives his domicil from his natural 
 guardian, and from none other), said : " Although some books 
 speak only of the father, or, in case of his death, the mother, 
 as guardian by nature, it is clear that the grandfather or grand- 
 mother, when the next of kin, is also such a guardian. In 
 the present case, the infants, when their mother died and they 
 went to the home of their paternal grandmother, were under 
 ten years of age ; the grandmother, who appears to have been 
 their only surviving grandparent, and their next of kin, and 
 whose only living child, an unmarried daughter, resided with 
 her, was the head of the family ; and upon tlie facts agreed, 
 it is evident that the removal of the infants, after the death 
 of their parents, to the home of their grandmother in Georgia, 
 was with Lamar's [their guardian's] consent. Under these 
 circumstances there can be no doubt that, by taking up their 
 residence with her, they acquired her domicil in that State." 
 The Supreme Court of Georgia, in Darden v. Wyatt,^ held 
 that the maternal grandfather of an infant, whose parents 
 were both dead, might change the residence of the infant 
 from one county to another, so as to vest in the ordinary of 
 the latter county jurisdiction to appoint a guardian. 
 
 It must be observed, that in both of these cases the infant 
 became actually resident with the grandparent, and a part of 
 the family of the latter. Whether the power of the grand- 
 parent would extend to an infant , not dwelling with such 
 grandparent, may well be doubted. In a Louisiana case, 
 minors were, by a family arrangement, taken from the State 
 of Louisiana, where their parents had died domiciled, and 
 
 2 114 U. S. 218. however, appaTently, is Marheinelce v. 
 
 8 15 Ga. 414. Bouhier laya it down Grothaus, 72 Mo. 204; although that 
 
 that the father, mother, or other ascend- case seemed to turn mainly upon the 
 
 ant may change the domicil of a minor, construction of a statute, still it can 
 
 because, from their "tendresse," every scarcely be reconciled with Lamar v. 
 
 fraudulent presumption is excluded (c. Micou, and Darden v. Wyatt. See 
 
 22 p 442, ed. 1742). To the contrary, further, WaiTen v. Hofer, supra. 
 
 341 
 
§ 245.] 
 
 THE LAW OF DOMICIL. 
 
 [chap. 
 
 XI. 
 
 placed to live with their father's brother and sister in other 
 States, their paternal grandfather being alive and taking part 
 in the arrangement. Upon these facts it was held that their 
 domicil remained unchanged.* The case turned largely, how- 
 ever, upon a construction of the Louisiana Code. 
 
 As between two ancestors of equal degree, probably that 
 one would have the power to change the domicil who first got 
 possession of the infant, and with whom the latter actually 
 resided.^ 
 
 * Succession of Stephens, 19 La. An. 
 499. 
 
 ^ This is in accordance with the do'c- 
 tiine laid down by Mr. Hargrave, re- 
 specting guardianship by nature. After 
 pointing out that much loosene.s3 exists 
 in the books upon this subject, he says : 
 "It seems that not only the father, 
 but also the mother and every other 
 ancestor may be guardians by nature, 
 though with considerable differences, 
 such as denote the superiority of the 
 father's claim. The father hath the 
 first title to guardianship by nature, 
 the mother the second ; and as to other 
 ancestors, if the same infant happens 
 to be heir apparent to two, as to both a 
 paternal and a n)aternal grandfather, 
 perhaps in this equality of rights priority 
 of possession of the infant's person may 
 decide the preference, according to the 
 general rule, in oequali jure melior est 
 conditio possidentis." Co. Litt. Harg. & 
 But. ed. 88 b, note 12. He further 
 points out, however, that, "According 
 to the strict language of our law, only 
 an Jieir apparent can be the subject of 
 guardianship by nature ; which restiic- 
 tion is so true, that it hath even been 
 doubted whether such a guardianship 
 can be of a daughter, whose heirship, 
 though denominated apparent, yet, be- 
 ing liable to be superseded by the birth 
 of a son, is in effect rather of the pre- 
 sumptive kind. 3 Co. 38 b. ante 84 a. 
 Therefore when the guardianship by 
 nature is extended to children m gen- 
 eral, or to any besides such as are heirs 
 apparent, it is not conformable to the 
 legal sense of the term amongst us, but 
 
 342 
 
 must be understood to have reference 
 to some rule independent of the common 
 law. Thus, when in chancery the father 
 and mother are styled the natural guar- 
 dians of all their children bom in mar- 
 riage, or of wivy of their illegitimate 
 issue, we should suppose those who 
 express themselves so generally to re- 
 fer to that sort of guardianship which 
 the order and course of nature, as far as 
 we are able to collect it by the light of 
 reason, seem to point out, and to mean 
 that it is a good rule to regulate the 
 guardianship by, where positive law is 
 silent, and it is in the discretion of the 
 Lord Chancellor to settle the guardian- 
 ship. So, too, when Lord Coke says 
 that the custody of a, female child under 
 sixteen, to which the father, and after 
 his death the mother, is entitled by the 
 provisions of the statute of the 4 & 5 
 Philip and Mary, is jure naturae, we 
 should understand him to mean, not 
 that such a custody was a guardianship 
 iy nature recognized by our common 
 law, but merely that it was a statutory 
 guardianship adopted by the Legislature 
 in conformity to the dictates of nature, 
 and upon principles of general rea- 
 soning." He concludes, therefore, that 
 it is only of the heir apparent that the 
 parent has the right to the custody un- 
 til the age of twenty-one years, the law 
 giving the custody of other children to 
 their parents until the age of fourteen 
 by the guardianship of nurture. But 
 the nice distinctions of the common 
 law upon this subject are not observed in 
 this country, and " as all the children, 
 male and female, equally inherit with 
 
§ 247. J DOMICIL OP INFANTS. [CHAP. XI. 
 
 § 246. Domioil of an Apprentice. — In Maddox V. The State,^ 
 a case involving the right to vote (in which class of cases 
 residence, as we have seen, is equivalent to domicil), the Su- 
 preme Court of Indiana held that : " The residence of the 
 master is the residence of the apprentice, for every purpose 
 known to the law, and whilst a minor, the apprentice could 
 not, by leaving his master and going to another State, change 
 that residence." 
 
 § 247. Adopted ChUd. — By adoption, as it is practised in 
 many of the States of this Union, the adopted child passes into 
 the family and under the control of the person or persons 
 adopting him, and in his relations with them enjoys most of 
 the rights and is subject to most of the duties which belong to 
 a child born in lawful wedlock. It would seem to follow that 
 such child, upon adoption, would receive as his own the domicil 
 of his adoptive parents, and that his domicil would follow theirs 
 throughout his infancy, in the same manner as if he were their 
 child by nature. But reasonable as this conclusion appears, 
 the writer has not been able to find any authority decisively 
 in point. 
 
 The Roman law, under which adoption was extensively 
 practised, is silent with regard to its effect upon domicil, 
 although it treats of its effect upon origo, imposing upon the 
 adopted son a double citizenship ; viz,i both that of his father 
 and that of the person adopting him. This rule was doubtless 
 due to a desire to prevent a person from exchanging the more 
 grievous burdens of one community for the lighter burdens of 
 another. Therefore, while the Roman law refused to relieve an 
 adopted person from the burdens which belonged to him by 
 reason of his natural parentage, it considered the relationship 
 of the adopting and adopted persons so close that it imposed 
 upon the latter the citizenship, with all its grievous incidents, 
 of the former. Probably the explanation of the silence of the 
 Roman law with regard to the effect of adoption upon domicil 
 is found in the fact, that, by that law, the domicil of the child 
 did not necessarily follow that of his father by nature ; and 
 
 lis, the guardianship hy nature would ^ 32 Ind. 14. 
 
 seem to extend to all the children." 2 * See supra, § 3, note 5. 
 
 Kent's Comm. 220. 
 
 343 
 
§ 248.] THE LAW OP DOMICIL. [CHAP. XI. 
 
 hence could scarcely be held to follow that of his adoptive 
 father. We have, therefore, no light from that law upon our 
 subject, except such as is drawn by the a fortiori argument 
 from the effect of adoption upon citizenship, keeping in view 
 the altered modern rule of the dependence of the domicil of 
 the child upon that of his parent. 
 
 After the downfall of the Roman Empire, adoption fell into 
 desuetude in most of the European countries, especially in 
 those (notably France and the Low Countries) ^ from which we 
 have received the ablest and most elaborate discussions of the 
 conflict of laws. As might be expected, these discussions are 
 silent upon our subject. Tlie Code Civil,* however, provides 
 for adoption, as do the positive laws (some of them lately 
 enacted) of many of the other European States. But while 
 the jurists of these countries have considered its effect upon 
 naturalization with somewhat conflicting results, they appear 
 to be silent on the subject of its effect upon domicil. 
 
 § 248. Id. — In this country, in the Massachusetts case of 
 Ross V. Ross,^ the language of Gray, J., in delivering the 
 opinion of the court, incidentally assumes, that where the 
 adoptive father has changed his domicil from one State to 
 another, taking with him his adopted child, the domicil of the 
 latter is thereby changed. In Foley's Estate,^ in the Phila- 
 delphia Orphans' Court, a briefly reported case in which the 
 question was as to the distribution of the personal estate of a 
 minor, Dwight, J., said : " The decedent was a minor at the 
 
 2 Denizart (ocrJ. Adoption) says that ' Art. 343 et seq. 
 
 adoption had place in France under the ^ 123 Mass. 243, 245. In a recent 
 
 first race of kings, hut subsequently fell case in the same State ( Washington v. 
 
 into disuse even in the " pays de droit White, 140 Mass. 568), it was held that 
 
 €crit," prior to the promulgation of under the statute of 1871, c. 310, of 
 
 the Code Kapol^on, only a single cus- that State, regulating adoptions, which 
 
 torn in the realm permitting it; and provides inter alia that a "child or 
 
 even in that case the consequences of person so adopted shtiU be deemed, for 
 
 the adoption being restrained to the the purpose of inheritance and all other 
 
 territory of that custom. See also Mer- legal consequences of the natural rela- 
 
 lin, Repertoire, verb. Adoption ; Chris- tion of parent and child, to be the child 
 
 tenasus, Decis. Curiae Belgio. 1. 4, decis. of the parent or parents by adoption, 
 
 185 ; Leeuwen, Cens. Forens. 1. 1, ch. 4 ; as if born to them in lawful wedlock," 
 
 Flore, no. 150 ct seq., and Pradier-Fo- etc., an adopted child follows the settle- 
 
 d^r^'s note ; Lawrence sur Wheaton, ment of her adoptive father, 
 
 vol. iii. p. 162 et seq. 2 11 Phila. 47. 
 344 
 
§ 250.] DOMICIL OP INFANTS. [CHAP. XI. 
 
 time of her death in this city; Mary Hamblet, who had 
 adopted her under the Massachusetts statute in 1858, was 
 then, and also at the time of the deceased's death, domiciled 
 in that State. So, too, Thomas Quinn, the father of the 
 minor. In either case we think the minor also had her 
 domicil in Masaachusetts." And he then proceeded to dis- 
 tribute the fund in court according to the Massachusetts 
 law. 
 
 § 249. Has a Guardian Power to change the Domicil of his 
 Minor Ward? — We proceed now to consider the vexed ques- 
 tion of the relation of a guardian to the domicil of his ward. 
 This subject has been discussed with great learning and 
 ability and at great length by the continental jurists, as well 
 as by those of Great Britain and this country. The views 
 expressed have been conflicting, and in many instances wholly 
 irreconcilable, and the doctrine, notwithstanding the thorough 
 discussion to which it has been subjected, still remains in- 
 volved in difficulty and doubt. 
 
 § 250. Id. Continental Authorities in the AfBrmative. — Byn- 
 kershoek has discussed the subject at great length, having 
 devoted a whole chapter of his Qucestiones Juris Privati^ to it. 
 He declares that he is not aware that the power of a guardian 
 to change the domicil of his ward, just the same as a surviv- 
 ing parent may change that of a child, has been seriously 
 doubted by any one, except where the question of personal 
 succession is considered ; for, he adds, where this question is 
 considered, there is much dispute. He gives it as his own 
 opinion that a guardian must be held to have such power, 
 even in cases where the question of personal succession is 
 raised ; and moreover he refuses to admit an exception, even 
 in cases of fraud. In this last respect, however, his opinion 
 stands by itself, and is put upon the rather sophistical grounds, 
 first, that the parents can, if they see fit, guard against a 
 change in the succession by an ante-nuptial figreement or a 
 testament ; and second, that it is impossible from the nature 
 of the case to lay down any general rule for determining 
 what shall be sufficient evidence of a fraudulent change of 
 
 domicil. 
 
 1 L. 1, c. 16. 
 
 345 
 
§ 250.] THE LAW OP DOMICIL. [CHAP. XI. 
 
 Burgundus,2 ^pon the authority of Bartolus, appears to hold 
 that the domicil of the guardian is also that of his ward, 
 whether they dwell togetlier or not. Rodenburg,^ speaking 
 with special reference to the law which determines minority 
 and majority, holds that a guardian may change the domicil 
 of his ward provided fraud or prejudice to third parties are 
 absent. Brentonnier * holds that, with reference to testamen- 
 tary capacity, the minor follows the domicil of his guardian. 
 Cochin ^ is cited as an authority for the dependence of the 
 domicil of the minor upon, that of his guardian, but it is 
 worthy of note that in the case of the Marquis St. Pater, in 
 which he appears to assume this ground (although it was not 
 material to the determination of the case) the guardian was 
 the maternal grandfather of the ward. Voet, as we have al- 
 ready seen,^ holds the same opinion with regard to the power of 
 a guardian to change the domicil of his ward as he holds with 
 regard to the power of a parent to change the domicil of his 
 or her infant child ; namely, that either of the persons named 
 may, if acting without fraud, change the domicil of the minor 
 by changing his or her own domicil and carrying the minor 
 along to the new place of abode.'^ 
 
 The opinion of BouUenois is difficult to extract from his 
 rather loose and apparently conflicting expressions. On the 
 
 ^ Ad Consuet. Fland. Tract. 2, no. sestimandosperfeetsesetatisannos; dum- 
 
 34. modo fraus absit, aut praejudicium tertii, 
 
 3 De Div. Stat. t. 2, c. 1, no. 6. extra quod vix est ut non dixeiis tutori, 
 
 He says : " Quseramus et illud quod maximfe matii locum ad hatitandnm, 
 
 frequentioris est incursionis ; Hollan- pupillumque eduoandum, elegendi jus 
 
 dus major viginti, minor viginti quin- esse, illudque ipsum dubli veriti Batavi 
 
 que annis transfert domicilium Ultra- Jurisconsult! tiitori agnato auctores fue- 
 
 jectum, ubi vigesimo anno tutela vel runt, ut stipularetur k matre ilia, cum 
 
 cura finitur. Quid dicemus preven- cogitaret ex HoUandia concedere Tra- 
 
 turum ilium suam in tutelam ? Re- jeotum, ne ea res infantis adspectu ullo 
 
 spondi ex facto consultus minori hodie modo domicilii mutationem induceret ; 
 
 constituendi domicilii, facultatem non quamquam fateor, si quid hoc ad rem 
 
 esse, tutori esse ; qu^ ut oontrahere, ita pertinet, posita hJic sententia, in potes- 
 
 et domicilium potest oonstituere, quod tate tutoris fore, tutela semet ocius 
 
 coUocetur illud per contractum, de quo exuere, nisi tum potius super fraude 
 
 mox latHis. Proinde in proposita mihi quajrendum foret." 
 specie, cum mater, quae tutrix esset, * Sur Hem-ys, t. 1, p. 635. 
 mutato k morte viri domicilio. Ultra- ° CEuvi"es, t. 6, p. 225 et seq. 
 
 jectum concessisset, ibique infans adole- ' Supra, § 238. 
 visset ; dixi ex Ultrajectinis legibus ' Ad Pand. 1. 5, t. 1, no. 100. 
 
 346 
 
§ 250.] DOMICIL OP INFANTS. [CHAP. XI. 
 
 one hand, he admits that there is no inconvenience in reputing 
 a minor to be domiciled where his guardian is domiciled as to 
 the particular faculties which the law of that domicil may give 
 him, so that if by the law of the domicil of the guardian, he 
 has the power to make a testament of his movables, he may 
 make one conformable to that law ; holding that it is but just 
 that in such case one who is domiciled, even though a minor, 
 should be subject to the purely real laws of the place where 
 he is domiciled without fraud.^ But, on the other hand, he 
 denies the right to the guardian to change the personal suc- 
 cession of the minor, and lays down as a general rule : " A 
 minor, out of the domicil of his father, with his tutor, dwells 
 with him, but he is not properly domiciled with him ; he so- 
 journs tliere awaiting his majority ; " and he likens him to a 
 suitor awaiting the result of his lawsuit.* 
 
 The French Code ^" provides, as we have seen, that the un- 
 emancipated minor shall have his domicil at the home of his 
 father and mother or tutor. The Louisiana Civil Code ^^ con- 
 tains a similar provision. But its effect is substantially 
 restrained to municipal domicil,^^ it being held that, inasmuch 
 as an appointed tutor forfeits his tutorship by removing from 
 the State, the provision is inapplicable to a change of quasi- 
 national domicil.^^ 
 
 Bar ^* holds that the alteration of the domicil of a minor 
 
 ' Diss, de la Contr. des Lois, Quaest. and having changed her domicil to a 
 
 2, pp. 61, 62. foreign country, taking her child with 
 
 ' Traite de la Personalite, etc., vol. her, the domicil of the latter was 
 
 ii. obs. 32, p. 53. changed, although the mother had re- 
 
 1" Art. 108. married. 
 
 11 Art. 48. " § 31 (Gillespie's trans, pp. 103- 
 
 12 Eobins v. Weeks, 5 Mart. (n. s.) 105). He says : "It is matter of dis- 
 379 ; State ex rel. Fuselier v. Judge of pute whether minors can change their 
 Prohates, 2 Rob. (La.) 160 ; Same v. domicil, and can emigrate to another 
 Same, id. 41 8 ; Succession of Stephens, State. Many assert that the minor re- 
 19 La. An. 499. tains the last domicil of his deceased 
 
 1* Kobins v. Weeks, supra. In that father ; others admit a change of domi- 
 
 case, however, a distinction in this cil, so far as it is not effected by any 
 
 respect betweeen a, tutor by mere ap- treacherous purpose of the guardian, — 
 
 pointraent and a natural tutor was e. g., a design to profit by some different 
 
 intimated; and in the case of Sue- law of succession at the minor's expense; 
 
 cession of Lewis, 10 La. An. 789, others declare themselves universally in 
 
 it was held that the mother having favor of the possibility of such a change 
 
 qualified as natural tutrix of her child being effected by the guardian. The 
 
 34T 
 
§ 251.J 
 
 THE LAW OP DOMICIL. 
 
 [CHAP. 
 
 XI. 
 
 ward can only take place with the approval of the supreme 
 authority charged with the guardianship ; but under this lim- 
 itation a minor may undoubtedly change his domicil through 
 his guardian. 
 
 § 251. Id. id. In the Negative. — But, on the other hand, 
 many of the continental jurists have denied the power of the 
 guardian to change the domicil of his infant ward. Mornac,i 
 speaking with special reference to personal succession, and 
 while admitting the existence of authority on the other side, 
 says : " Praevaluit vero eorum sententia, qui domicilium mi- 
 noris prsesertim eo casu in loco originis, id est, in asdibus 
 paternis ac maternis coUocandum dicerent. Cum enim domi- 
 cilium quatuor modis contrahi soleat, natura, ac origine, item 
 voluntate, ac consilio, deinde conventione, aut ex necessitate 
 muneris. Solum ex his naturale domicilium minori superest, 
 locus scilicet, in quo ipse creverit, parentesque defecerint; 
 absurdumque aliud fuerit affingere minori in cseteris, quod 
 ipse per eetatem non habeat eligendi nempe domicilii consil- 
 Imo et prsestaretur ansa interdum tutoribus fraudandi 
 
 lum. 
 
 answer to this question must depend on 
 whether the privilege of clianglng al- 
 legiance is to be considered a highly- 
 personal privilege, which a representa- 
 tive is not in a position to exercise. 
 This question, again, must he answered 
 in the negative, by reference to the fact 
 that the domicil of minor children can 
 be changed by their father. But this 
 answer must always be qualified by the 
 proviso that no statute shall expressly 
 provide to the opposite effect. The 
 alteration of domicil can, however, only 
 take place with the approval of the 
 supreme authority charged with guar- 
 dianship ; it is no act of regular ad- 
 ministration, and may modify personal 
 rights or personal status, matters of 
 the greatest importance to the ward. 
 Under this limitation a minor may in- 
 dubitably change his domicil through 
 his guardian. The ward, his heirs and 
 relations, are, by the necessity of ob- 
 taining the consent of the supreme au- 
 thority, protected against any fraudulent 
 procedure of the guardian that might 
 
 348 
 
 in some way be directed against the 
 ward's inheritance ; whereas the oppo- 
 site doctrine, by which no change of 
 domicil at all is permitted during mi- 
 nority, might no doubt be very prejudi- 
 cial for the ward. The termination of 
 majority is, in such a case, to be de- 
 termined by the law of the State to 
 which the individual belonged at the 
 time, and not by the law of that State 
 into which he proposes to enter. It is 
 only possible to be received into another 
 State if the connection of the person so 
 to be received with the State to which 
 he has hitherto belonged is severed ; 
 and that severance can only take place 
 in accordance with the law of this latter 
 State, except when these laws would 
 come into conflict with universally 
 recognized principles of international 
 law, in which case they need not be 
 recognized by the other State. That 
 cannot, however, be the case with any 
 laws that regulate the limits of mi- 
 nority." 
 
 1 Obs. ad Cod. t. 3, 1. 3. t. 20. 
 
§ 252.J DOMICIL OP INFANTS. [CHAP. XI. 
 
 veros mobilium minoris intereuntis hseredes traiisferentibus 
 scilicet domiciliuai in loca, quibus successura sibi viderent ex 
 patriis moribus, intereunte valetudinario minore desideria." 
 Christenseus 2 lays down the same doctrine, using almost the 
 very words of Mornac. Bouhier ^ holds that the domicil of a 
 minor cannot be changed by his guardian, unless the latter be 
 an ascendant. 
 
 Denizart* says: "Minors, even after the death of their 
 father, have no other domicil than that which their father 
 had ; this they retain always, until they become either majors 
 or married, without their kinsfolk or guardian being able to 
 change it, because they may not disturb the order of succes- 
 sion regulated by the domicil." Pothier,^ speaking with his 
 usual clearness, says, after citing the several authorities pro 
 and eon : " It suffices us to say that minors do not compose 
 the family of their guardian as infants compose the family of 
 their father ; they are in the house of their guardian as in the 
 house of a stranger ; they are there ad tempus, for the time 
 that the guardianship ought to last ; consequently the domicil 
 of their guardian is not their true domicil, and they cannot 
 be considered to have any other than the parental domicil 
 until they become of age to establish, and have effectively 
 established, one for themselves by their own choice." • And, 
 according to Demolombe,^ it was generally held, prior to the 
 adoption of the Code Civil, that a guardian, the father or the 
 mother excepted, was not able to change the domicil of his 
 minor ward. Merlin '' says that in the old law the only doubt 
 was as to the power of a guardian who was an ascendant ; for 
 it was unanimously agreed that a guardian who was a stran- 
 ger in blood, or a collateral relative, had no power to change 
 the domicil of his ward. 
 
 § 252. Id. English Text-writers. — In England, among the 
 text-writers, Foote^ affirms the dependence of the domicil of 
 the minor ward upon that of his guardian ; Dicey ^ considers 
 
 2 Deois. Curiae Belgic. decis. 166, •> Cours de Code Napoleon, t. 1, no. 
 
 t. 2, vol. ii. p. 204. 360. 
 
 2 Obs. sax la Gout, de Bourg. c. 21, ' Repertoire, t. 8, verb. Dom. § 5. 
 
 p. 384 ; c. 22, p. 442, ed. 1742. i Priv. Int. Jiir. p. 10. 
 
 * Verb. Dom. no. 9. " Dom. pp. 100, 101. He says : 
 
 ' Intr. aux Cout. d'OrUana, no. 17. " It is possible that the domicil of an 
 
 349 
 
§ 253.] THE LAW OP DOMICIL. [CHAP. XI. 
 
 it doubtful ; and Westlake appears on both sides of the ques- 
 tion. In his first edition,^ he holds that "the domicil of an 
 unmarried infant, boy or girl, . . . follows that of the mother 
 or guardian after the father's death, and that of the guardian 
 after the death of both parents;" while in his second edi- 
 tion * he says : " A guardian, whether appointed by the father 
 under [the law of the father's domicil] or by that law or 
 jurisdiction itself, cannot change his ward's domicil, except 
 so far as he may be permitted to do so by the terms of his 
 appointment, or by the law or public authority under which 
 he holds his office ; " admitting an exception, however, in the 
 case of the mother, when she is the guardian, and the appoint- 
 ment or law under which she holds expresses nothing to the 
 contrary. 
 
 § 253. Id. American Text-writers. — In this country we 
 have on the one side the high authority of Kent^ declaring: 
 " It would rather seem to me that, if there be no competent 
 parent living and the guardian be duly appointed, he may 
 and ought, when acting in good faith and reasonably in 
 his character of guardian, to be able to shift the infant's 
 domicil with his own, and that the foreign authorities to that 
 point have the best reason on their side. The objection against 
 the guardian's power, in such a case, appears to me to be too 
 refined and speculative." On the other side, we have the 
 equally high authority of Story ,^ who says : " In the case of 
 
 orphan follows that of his guardian; but tained that the home of a ward is in 
 whether this be so or not ia an open fact, or ought to be as a matter of con- 
 question. In the first place, it may be venience, identified with the home of 
 doubted whether the rule is not, rather, his guardian, in the same way in which 
 that a ward's domicil can be changed in the home of a child is naturally identi- 
 some cases by his guardian, than that it fied with that of his father. Should 
 follows the domicil of his guardian. It the question ever arise, it will probably 
 is difficult to believe that the mere fact be held that a guardian cannot change 
 of D.'s guardian acquiring for himself the domicil of his ward, and almost 
 a domicil in France can deprive D., the certainly that he cannot do this unless 
 son of a domiciled Englishman, of his the ward's residence is as a matter of 
 English domicil. In the second place, fact that of the guardian. " 
 the power of a guardian to change at ' Priv. Int. L. 1st ed. p. 35, rule 3. 
 all the domicil of his ward is doubtful. * Id. 2d ed. § 238. 
 In the one recorded English case on i Comm. vol. ii. lect. 30, p. 227, 
 the subject, the guardian was also the note (a). 
 mother of the children. As a matter ^ Confl. of L. § 506, note 1. 
 of common sense, it can hardly be main- 
 
 350 
 
§ 264.] DOMICIL OF INFANTS. [CHAP. XI. 
 
 a change of domicil by a mere guardian, not being a parent, 
 it is extremely difficult to find any reasonable principle on 
 which it can be maintained that he can, by any change of 
 domicil, change the right of succession to the minor's prop, 
 erty. The reasoning of Bynkershoek upon the point is very 
 unsatisfactory, while that of Mornac, Bouhier, and Pothier, 
 has solid reason and justice to sustain it." Wharton ^ also 
 takes the negative side of the question, at least so far as it 
 concerns succession ; contending, however, that " the techni- 
 cal forum of the minor is always, and unquestionably, that of 
 the parent or guardian." 
 
 It thus appears that the opinions of the tex1>-writers are 
 about equally divided, both in point of number and au- 
 thority. 
 
 § 254. Id. No Direct Decision in England. — English juris- 
 prudence furnishes no decided case in elucidation of our sub- 
 ject. The case of Potinger v. Wightman ^ has been frequently 
 cited in this country as though it decided that a guardian, qua 
 guardian, could change the domicil of his ward from one State 
 or country to another ; but careful examination discloses that 
 no such doctrine was there held. In that case the mother 
 happened also to be the guardian, but it was qua mother that 
 Sir William Grant held her entitled to change the domicil 
 of her infant children. Moreover, it is noteworthy that, in 
 reaching his conclusion, he relied strongly upon the authority 
 of Pothier, and pointed out that while that~ jurist " considers 
 it as clear that the domicil of the surviving mother Is also the 
 domicil of the children, provided it be not with the fraudu- 
 lent view to their succession that she shifts the place of her 
 abode," " he holds, in opposition to the opinion of some ju- 
 rists, that a tutor cannot change the domicil of his pupil." 
 
 That this is the view of Potinger v. Wightman taken by 
 the English judges is apparent from the remarks of Lords 
 Lyndhurst and Campbell in Johnstone v. Beattie.^ In Douglas 
 V. Douglas,^ Wickens, V. C, took occasion to say during the 
 argument : " It seems doubtful whether a guardian can change 
 
 3 Confl. of L. § 42. language of Lords Lyndhurst and Camp- 
 
 1 3 Mer. 67 ; mpra, § 239. tell quoted supra, § 239, note 2. 
 
 a 10 CI. & F. 42, 66, 138. See ^ L. K. 12 Eq. 617, 625. 
 
 361 
 
§ 256.] 
 
 THE LAW OP DOMICIL. 
 
 [chap. XI. 
 
 an infant's domicil. The difficulty is that a person may be 
 guardian in one place and not in another." 
 
 § 255. Id. American Decisions. Natural Guardian may change 
 the Domicil of hia Infant Ward. — The subject has been discussed 
 in a number of cases in this country with much conflict of 
 opinion as the result. 
 
 We have already seen that a natural guardian may change 
 the domicil of his or her ward ; and who are to be deemed 
 natural guardians has already been stated. 
 
 § 256. Id. id. The Domicil of the Guardian is not necessarily 
 that of his Infant Ward. — The domicil of the guardian is not 
 necessarily that of his ward ; ^ this was decided in School 
 Directors v. James,^ Gibson, C. J., delivering an opinion of 
 
 1 Besides cases cited infra, see Suc- 
 cession of Lewis, 10 La. An. 789, where 
 Lea, J., says : "As a general rule the 
 domicil of the minor cannot be changed 
 by n. departure of the tutor, or the re- 
 moval of the minor from the State." 
 But it is otherwise in Louisiana as to 
 municipal domicil. See supra, § 250. 
 
 2 2 W. & S. 568. This case is 
 so frequently cited, and the language 
 of Chief-Justice Gibson so frequently 
 quoted, that it is deemed proper here 
 to give his opinion in fuU : " As this 
 case has no precedent, we must decide 
 it on grounds of reason and analogy ; 
 and in order to do so, it is necessary to 
 premise certain principles about which 
 there is no dispute. The domicil of an 
 infant is the domicil of his father, dur- 
 ing the father's lifetime, or of his mother 
 during her widowhood, but not after 
 her subsequent marriage ; the domicil 
 of her widowhood continuing in that 
 event to be the domicil of her child. 
 A husband cannot properly be said to 
 stand in the relation of a parent to 
 his wife's children by a previous mar- 
 riage, where they have means of support 
 which are independent of the mother, 
 in whose place he stands for the per- 
 formance of her personal duties, be- 
 cause a, mother is not bound to support 
 her impotent children so long as they 
 are of ability to support themselves. 
 
 352 
 
 Neither can they derive the domicil 
 of a subsequent husband from her, be- 
 cause her new domicil is itself a deriva- 
 tive one, and a consequence of the 
 merger of her civU existence. Her 
 domicil is his, because she has become 
 a part of him ; but the same thing can- 
 not be said of her children. Having 
 no personal existence for civil purposes, 
 she can impart no right or capacity 
 which depends on a state of civil exist- 
 ence ; and the domicil of her children 
 continues, after a second marriage, to 
 be what it was before it. Thus we see 
 that when the defendant was appointed 
 guardian of these minor children, their 
 domicil was in the township of East 
 Bradford, where they resided with their 
 mother, if that were important, even 
 after her second marriage ; and as the 
 situs of their movable property attended 
 the domicil of their pereons, it was 
 taxable only there. So far, there is 
 no dispute. But as a father, or a 
 mother, sui juris, may change the 
 domicil of the child by changing the 
 domicil of the family, provided the 
 change be induced for a disinterested 
 motive, — not, for instance, to change 
 the rule of succession in the event of 
 the child's death, — the question is 
 whether a guardian or tutor stands In 
 the place of a parent, or has the same 
 power ; and it is still a vexed one with 
 
§ 256.] 
 
 DOMICIL OF INFANTS. 
 
 [chap. XI. 
 
 great clearness and cogency, in which he said : " A ward is 
 not naturally or necessarily a part of his guardian's family ; 
 
 the civilians, who are equally divided 
 in regard to it. Those who maintain 
 the affirmative of it are corroborated 
 by the Code Civil, which, though of 
 positive enactment, is supposed to be 
 founded, in this particular, on the 
 established principles of civil jurispru- 
 dence ; while those who maintain the 
 negative have, on their side, among 
 others, the authoritative name of Po- 
 thier. But the former are supported 
 by the approbation of Mr. Burge, the 
 learned British commentator on the 
 Conflict of Laws, as well as by the opin- 
 ion of Sir William Grant, in Potiiiger 
 V. Wightman (3 Merivale, 67), and by 
 the decisions of some of the American 
 courts, which would be amply sufficient 
 to turn the scale of authority, were it 
 not for the powerful doubt thrown in 
 on the other side by Mr. Justice Story. 
 ' Notwithstanding,' says he, 'this weight 
 of authority, which, however, with one 
 exception, is applied solely to the case 
 of parents, or of a surviving parent, 
 there is much reason to question the 
 principle on which the decision (in 
 Potinger v. Wightman) is fouuded, 
 when it is obviously connected with 
 a change of succession to the property 
 of the child. In the case of a change 
 of domicil by the guardian, Tiot being a 
 parent, it is extremely difficult to find 
 any reasonable principle on which it 
 can be maintained that he can, by any 
 change of domicil, change the right 
 of succession to the minors' property.' 
 Conil. of L. 2d ed. § 506, in notes. 
 And there are reasons for this doubt 
 which seem to bear it out. No infant, 
 who has a parent sui juris, can in the 
 nature of things have a separate domi- 
 cil. This springs from the status of 
 marriage, which gives rise to the insti- 
 tution of families, the foundation of all 
 the domestic happiness and virtue which 
 is to be found in the world. The nur- 
 ture and education of the offspring make 
 it indispensable that they be brought 
 up in the bosom, and as a part, of their 
 
 parents' family ; without which, the 
 father could not perform the duties he 
 owes them, or receive from them the 
 service that belongs to him. In every 
 community, therefore, they are an in- 
 tegrant part of the domestic economy ; 
 and the family continues, for a time, to 
 have a local habitation and a name, 
 after its surviving parent's death. The 
 parents' domicil, therefore, is conse- 
 quently and unavoidably the domicil 
 of the child. But a ward is not natu- 
 rally or necessarily a part of his guar- 
 dian's family ; and though the guardian 
 may appoint the place of the ward's 
 residence, it may be, and usually is, 
 a place distinct from his own. When 
 an infant has no parent, the law remits 
 him to his domicil of origin, or to the 
 last domicil of his surviving parent ; 
 and why should this natural and whole- 
 some relation be disturbed by the com- 
 ing in of a guardian, when a change of 
 the infant's domicil is not necessary to 
 the accomplishment of any one purpose 
 of the guardianship ? The appointment 
 of a new residence may be necessary for 
 purposes of education or health ; but 
 such a residence being essentially tem- 
 porary, was held, in Cutts v. Haskins 
 (9 Mass. R. 543), insufficient to consti- 
 tute a domicil. But, granting for the 
 moment that a guardian may, for some 
 purposes, change his ward's domicil, 
 yet if he may not exercise the power 
 purposely to disappoint those who 
 would take the property by a par- 
 ticular rule of succession (and nearly 
 all agree that even a parent cannot), 
 how can he be allowed to exercise it so 
 as obviously and unavoidably to injure 
 the ward himself? It is true that 
 what has been said on the subject has 
 had regard to a change of national dom- 
 icil, and that here we have to do with 
 a supposed change, by implication of 
 law, from one township to another in 
 the same county ; but the power of the 
 guardian to do injury can be no greater 
 in the one case than it Is in the other. 
 
 23 
 
 353 
 
S 266.] THE LAW OP DOMICIL. [CHAP. XI. 
 
 and though the guardian may appoint the place of the ward's 
 residence, it may be, and usually is, a place distinct from his 
 own. When an infant has no parent, the law remits him to 
 his domicil of origin or to the last domicil of his surviving 
 parent; and why should this natural and wholesome rela- 
 tion be disturbed by the coming in of a guardian, when a 
 change of the infant's domicil is not necessary to the accom- 
 plishment of any one purpose of the guardianship? ... A 
 guardian has indeed power over his ward's person and resi- 
 dence, but it follows not that the ward's domicil must at- 
 tend that of his guardian, for there is nothing in a state of 
 pupilage which requires it to do so. We are of opinion, then, 
 that the domicil of a ward is not necessarily the domicil of 
 his guardian." This was a case of municipal domicil, involv- 
 ing the question of taxation, and the precise point determined, 
 was that the personal property of the wards was not taxable 
 in the borough in which the guardian was domiciled, the 
 wards residing with their mother in another municipal divi- 
 sion, where also their father had been domiciled at the time of 
 his death. In a late New York case,^ involving a question of 
 testamentary capacity, it was held that the domicil of the ward 
 
 The very end and purpose of his office tributions to the school fund hy par- 
 is protection ; and I take it that there ticipating in the instruction which it 
 is no imaginable case in which the law was intended to dispense ; but the dis- 
 makes it an instrument of injuiy by trict in which their parents resided has 
 implication. Where, indeed, he acts elected to reject both the benefits and 
 fairly and within the scope of his au- the burthens of it ; and to say they are 
 thority, the ward must bear the conse- bound by the election made by the in- 
 quences, because he must bear those habitants of their guardian's district is 
 risks that are incident to the manage- to assume the ground in dispute — that 
 ment of his affairs ; but that is a differ- their domicil has been changed. A 
 ent thing from burthening him with a guardian has indeed power over his 
 loss as a mere technical consequence of ward's person and residence ; but it 
 the relation. But a guardian cannot follows not that the ward's domicil 
 convert his ward's money into land, or must attend that of his guardian, for 
 his land into money, except at his own there is nothing in a state of pupilage 
 risk ; and, for a reason more imperative which requires it to do so. We are of 
 than any to be found in a case of mere opinion, then, that the domicil of a 
 conversion, he must not be allowed to ward is not necessarily the domicil of 
 burthen his ward with a certainty of loss his guardian ; and that the personal 
 by subjecting his property to taxation property of these children was not tax- 
 for purposes in which the ward has not able by the borough of West Chester." 
 an interest. It is said that these minors ' Seiter v. Straub, 1 Demar. 204. 
 may receive an equivalent for their con- 
 
 354 
 
§ 258.] DOMICIL OP INFANTS. [CHAP. XI. 
 
 does not follow that of the guardian. In this case the parents 
 of the deceased ward were at the time of their death domiciled 
 in New York, where she continued to reside until her death, 
 her guardian being domiciled in New Jersey ; and it was held 
 that her domicil continued to be in New York, and that her 
 testamentary capacity must be determined by the law of that 
 State. This doctrine is still further ;re-enforced by the cases 
 of Cutts V. Haskins,* and Holyoke v. Haskins,^ in which the 
 domicil of the guardian and that of his non compos ward were 
 held to be different. 
 
 § 257. Id. id. Guardian may change the Municipal Domicil of 
 his Ward. — It appears to be pretty well settled that a guar- 
 dian may change the municipal domicil of his infant ward. 
 In Ex parte Bartlett^ this point was raised, and Bradford, 
 Surrogate, in a learned opinion, while doubting the authority 
 of the guardian to change his ward's domicil from one State 
 to another, held that he had authority to change her domicil 
 from one county to another within the same State, so as to 
 divest the Surrogate of the former county of jurisdiction to 
 appoint the guardian's successor and to confer it upon the Sur- 
 rogate of the latter county. In Kirkland v. Whateley,^ the 
 Supreme Court of Massachusetts held that a minor may, with 
 the consent of his guardian, change his domicil from one town 
 to another within the same State, and thus shift the place 
 where he is liable to personal taxation. The doctrine of this 
 case, although it was doubted by Gibson, C. J., in School Di- 
 rectors V. James, and to a certain extent contradicted by the 
 Missouri case of Marheineke v. Grothaus,^ is further supported 
 by the cases of Cutts v. Haskins, Holyoke v. Haskins, and An- 
 derson V. Anderson,* hereafter to be noticed, in which similar 
 authority was held to belong to guardians of non compotes. 
 
 § 258. Id. id. Fovrer to change National or quasi-National 
 Domicil. Cases in the Affirmative. — The cases in which it has 
 been declared competent for the guardian to change the domi- 
 cil of his ward from one State to another are indeed few, 
 
 * 9 Mass. 543. ^ 4 Allen, 642. 
 
 6 5 Pick. 20. » 72 Mo. 204. 
 
 1 4 Bradf. 221. See also the Loui- * 42 Vt. 350. 
 siaiia cases cited supra, § 250, note 12. 
 
 355 
 
§ 258.] THE LAW OF DOMICIL. [CHAP, XI. 
 
 although some of them assert such competency with great 
 positiveness. In the Ohio case of Pedan v. Eobb's Adm'r,i 
 Grimke, J., says : "Although it was once a greatly controverted 
 question, yet it is now settled that he [a guardian] has even a 
 right to change the domicil of his ward (Potinger v. Wight- 
 man). The reason of the doubt was, that the exercise of tlie 
 right would put it into the power of a guardian to change the 
 succession to the personal property of his ward; a reason 
 which, although it seems to have had great weight with some 
 of the Civil law lawyers, has never entitled itself to much with 
 English or American jurists." But the authority upon which 
 he bases his opinion that the question has been settled in favor 
 of the power of the guardian, namely, Potinger v. Wightman, 
 has, as we have already seen, no direct bearing upon the 
 subject. Moreover, the question before the court was the 
 liability of the personal representative of a deceased guardian 
 to be sued by the ward for an account in Ohio, the guardian 
 having been appointed in Pennsylvania. Furthermore, it is 
 noteworthy that in this case the guardian was also the father 
 of the ward. 
 
 Similar language was used by Flandrau, J., in Townsend v. 
 Kendall,^ a case of false imprisonment against a foreign guar- 
 dian for taking into his custody, and attempting to carry back 
 to his domicil in Ohio, a ward who had been removed from 
 that State by his re-married mother. He says : " It is quite 
 well settled in England and the United States that a guardian 
 may change the residence of his ward from one State or coun- 
 try to another, when that change will be for the benefit of the 
 ward (Story's Conflict of L. sec. 506). And this, though it 
 may change the nature of the succession of the infant's estate 
 should he die in his new domicil ; but the least suspicion of 
 fraud would be closely scrutinized by a court of chancery. 
 This consideration, however, does not affect the existence of 
 the power in the guardian, but only goes to the proper and 
 faithful exercise of it. The power has been clearly recognized 
 in the following English and American cases : Potinger v. 
 Wightman ; Guier v, O'Daniel ; Cutts v. Haskins ; Holyoke v. 
 
 1 8 Ohio, 227. s i Minn. 412. 
 
 356 
 
§ 258.] 
 
 DOMICIL OP INFANTS. 
 
 [chap. XI. 
 
 Haskins ; Wood v. Wood ; Pedan v. Robb's Adm'r. The lat- 
 ter case is very much in point." 
 
 But the cases which he cites do not bear him out in his 
 position. Potinger v. Wightman has already been discussed. 
 Cutts V. Haskins and Holyoke v. Haskins were, as we have 
 already seen, cases of municipal domicil. In Guier v. O'Daniel,^ 
 although it is sometimes cited as an authority upon this ques- 
 tion, the power of a guardian over the domicil of his ward was 
 not decided, discussed, or alluded to in any way. The lan- 
 guage of Rush, President, was : " A minor, during pupilage, 
 cannot acquire a domicil of his own. His domicil, therefore, 
 follows that of his father, and remains until he acquires an- 
 other, which he cannot do until he becomes a person sui juris." 
 Which language, if it bears upon our subject at all, must be 
 taken to deny rather than affirm the power of a guardian. 
 
 In Wood V. Wood,* a father, domiciled in New York at 
 
 8 1 Binn. 349, note. 
 
 4 5 Paige, Ch. 596. The Chancel- 
 lor says : " It is very evident, from the 
 will, that the decedent, for some reason 
 which he has not explained, was very 
 desirous that his widow and children 
 should leave this State, where his, as 
 well as her, relatives resided, and should 
 remove with his brother, the trustee, to 
 the State of Ohio ; where, it is ad- 
 mitted, none of them had any relatives, 
 or even acquaintances. The trusts of 
 the will, which he probably supposed to 
 be valid, were framed in reference to 
 such a removal and location of his fam- 
 ily in that State. It turns out, how- 
 ever, that the widow is not willing to 
 remove with her infant children to so 
 great a distande from the residence of 
 her friends, and to locate herself entirely 
 among strangers. And it appears to the 
 court that her objections to such u 
 change of residence are not unreasona- 
 ble under the circumstances of this 
 case. I have no doubt as to the right 
 of a parent or guardian to change the 
 residence of his infant children, or wards, 
 from one State to another, provided 
 such change of residence is made in 
 good faith and with a view to their ben- 
 
 efit ; subject, however, to the power of 
 this court to restrain an improper re- 
 moval of an infant by his guardian, or 
 even by his parent. It must be a very 
 extreme or special case, however, which 
 would induce this court to interfere 
 with the natural rights of a parent in 
 this respect. That such a power exists 
 in the court of chancery was settled by 
 Lord Thurlow in the case of Creuze v. 
 Hunter (2 Cox's Ca. 242). The juris- 
 diction of the court on this subject 
 was again exercised, by Lord Eldon, in 
 De Manneville v. De Manneville (10 
 Ves. 52); where the father of the infant, 
 a French emigrant, was restrained from 
 removing the child out of the jurisdic- 
 tion of the court. And in the recent 
 case of the nephew of the Duke of 
 Wellington, a son of Lord Maryborough, 
 the House of Lords, with the entire con- 
 currence of Lord Chancellor Lyndhurst, 
 and of Lords Redesdale and Manners, 
 two former Chancellors of Ireland, 
 affirmed the decision of Lord Eldon, 
 in refusing to a profligate father the 
 custody and control of the persons of 
 his infant children (see Wellesley v. 
 "Wellesley, 2 Bligh's Pari. Eep. (n. s.) 
 124; 1 Dow & Clark, 162, s, o. ). This 
 
 357 
 
I 258.]' THE LAW OF DOMICIL. [CHAP. XI. 
 
 the time of his death, appointed a testamentary guardian for 
 his children who were of tender age, and directed him to re- 
 move them to the State of Ohio. The widow, refusing to 
 accompany them to Ohio, and asking to have them remain 
 with her in the State of New York, Walworth, Chancellor, 
 restrained him from removing them from the latter until 
 further order. The question of their domicil was not raised ; 
 but certain language used by the Chancellor has been thought 
 by some to give support to the theory which maintains the 
 power of the guardian to change his ward's domicil. It would 
 seem, however, particularly in view of the authorities which 
 he cites, and which relate to the custody and control of minors 
 by their father and his right to appoint their place of resi- 
 dence, that the learned Chancellor had reference rather to a 
 change of actual residence than to a change of legal residence 
 or domicil. 
 
 In White v. Howard ^ the facts were somewhat similar to 
 those of Wood v. Wood. A father domiciled, at the time of 
 his death, in Connecticut, appointed a testamentary guardian 
 for his daughter, and directed that the latter should, during 
 her minority, reside in New York, under the care of her guar- 
 dian, who also resided there, and there was no circumstance 
 tending to show that the father expected his daughter ever 
 to return to Connecticut. His direction having been carried 
 out, and the daughter having died under age, it was held that 
 her domicil had been changed to New York. But the 'court, 
 
 court has the same jurisdiction over a question as to the domicil of the testa- 
 testamentary guardian as it has over a tor's daughter at the time of her death 
 guardian in socage, or any other guar- does not depend upon the determination 
 dian ; and in this case it would he im- of any question as to her power while a 
 proper to permit the testamentary guar- minor and a ward, or the power of her 
 dian to take the infant complainants guardian to choose or create a new or 
 from their mother and carry them another domicil. It is manifest from 
 among strangers, several hundred miles the will that her father expected and 
 from her residence, at their present ten- intended that she should, upon and after 
 der ages. He must not take them from his death, during her minority, reside in 
 her, therefore, without the further order New York under the care and protection 
 of the court ; which order he is at lib- of her guardian residing there. It is 
 erty to apply for whenever it may be evident that her father intended, by 
 proper." his will, upon and after his death to 
 ^ 52 Barb. 294, 318. Sutherland, J., change her domicil from Connecticut to 
 said : " I think the determination of the New York." 
 
 358 
 
§ 258.] 
 
 DOMICIL OF INFANTS. 
 
 [chap. XI. 
 
 Sutherland, J., delivering the opinion, declined to put its de- 
 cision upon the ground of the power of the guardian to change 
 the domicil of his ward, basing it upon tlie manifest intention 
 of the father to change the domicil of his child. 
 
 Wheeler v. HoUis ^ was in many respects a peculiar case. 
 
 8 19 Tex. 622. The utterances of 
 the able judge who delivered the opinion 
 of the court, even when his conclusions 
 are apparently unsound, are usually en- 
 titled to consideration. His opinion 
 is here given at some length, particularly 
 as it is the strongest presentation of 
 the affirmative side of the question which 
 has come to the attention of the writer. 
 He says : " The main question in the 
 case is, whether the removal of Watson 
 and wife, with his ward, Elizabeth Ham- 
 ilton, from Mississippi to Texas, and 
 hence to Arkansas, effected a change of 
 the domicil of the ward ; for it is not 
 questioned, and is undeniable, that the 
 law of her domicil at the time of her 
 death must regulate the succession of 
 her personal property. Judge Story, in 
 his Conflict of Laws, has examined the 
 authorities on the question whether a 
 guardian has the power to change the 
 domicil of his ward from one country 
 to another, so as to change the rule of 
 succession to his personal property in 
 case of his death, at some length ; and 
 from his citations it appears that, while 
 there is a difference of opinion among 
 foreign jurists, the weight of authority 
 is in favor of the power, if the change 
 was without fraud. There certainly is 
 a great weight of authority in favor of 
 such a power in the parent ; though 
 some foreign jurists take a distinction 
 between the case of a change of domicil 
 by a parent and by a guardian, and 
 while they admit the right in the former, 
 deny it to the latter (Story's Confl. of 
 L. §§ 505-507, and notes). 'The same 
 question,' says Judge Story, 'has oc- 
 curred in England ; and it was on that 
 occasion held that a guardian may 
 change the domicil of his ward so as to 
 affect the right of succession, if it is 
 done bona fide and without fraud " (Id. 
 § 506). The case referred to is Potin- 
 
 ger V. Wightman, 3 Meriv. 67, decided 
 by Sir William Grant. The case was 
 one of the first impression, it seems, 
 at that time, in England. It was 
 argued with gi'eat learning by Sir 
 Samuel Eomilly and Mr. Swauston in 
 favor of the power of the guardian, who 
 was the mother, a widow, acting sui 
 juris and for her children ; and her 
 power of effecting a change of domicil 
 was sustained. From the opinion of 
 the Master of the Kolls, however, it 
 may be plainly inferred that if it had 
 appeared that it was with a fraudu- 
 lent view to the succession of her 
 children and wards that the guardian 
 had changed her abode, the decision 
 in that case would have been differ- 
 ent. ( See this case referred to by Lord 
 Campbell in the House of Lords in 
 Johnstone v. Beattie, 10 CI. & Fin. 138; 
 and see the opinion of Lord Cottenham, 
 to the effect that an infant may be taken 
 out of the limits of the jurisdiction by 
 permission of the Court of Chancery. 
 Id. 106, s. c. ) Judge Story says the 
 doctrine of the case of Potinger v. 
 Wightman, 3 Meriv. 67, has been recog- 
 nized as the true doctrine in America. 
 Nevertheless, he questions the power of 
 the guardian (Story's Confl. of L. § 606, 
 and notes). It is to be regretted that 
 the question is left by the authorities in 
 so much doubt and uncertainty. The 
 opinions of American courts, as far as 
 we have seen, appear to favor the power 
 of the guardian, though the cases are not 
 precisely in point . to the present (Hol- 
 yoke V. Haskins, 5 Pick. 20 ; Cutts v. 
 Haskins, 9 Mass. 543 ; Guier v. O'Dan- 
 iel, 1 Binn. 349, in note ; Upton v. 
 Northbridge, 15 Mass. 239). We will 
 conclude our examination of authorities 
 by reference to the opinion of Chief 
 Justice Gibson in School Directors v. 
 James, 2 Watts & S. 568. He considers 
 
 359 
 
258.] 
 
 THE LAW OF DOMICIL. 
 
 [chap. XI. 
 
 H., being domiciled in Mississippi, died, leaving a widow and a 
 minor child, E. The widow married W., who was appointed 
 
 the civilians equally divided upon the 
 question whether a guardian or tutor 
 stands in the place of a parent, and has 
 the same power as a father or mother, 
 sui juris, to change the domicil of a 
 child ; and concludes that the English 
 and American authorities support the 
 affirmative, and would be amply suffi- 
 cient to turn the scale of authority, 
 ' were it not for the powerful doubt 
 thrown in on the other side by Mr. Jus- 
 tice Story.' He thinks there are grounds 
 for this doubt, and reasons thus : 'No 
 infant who has a parent sui juris can, 
 in the nature of things, have a separate 
 domicil. This springs from the status 
 of marriage, which gives rise to the in- 
 stitutions of families, the foundation of 
 all the domestic happiness and virtue 
 in the world. The nurture and educa- 
 tion of the offspring make it indispensa- 
 ble that they be brought up in the 
 bosom and as a part of their parents' 
 family ; without which the father could 
 -not perform the duties he owes them, 
 or receive from them the service that 
 belongs to him. In every community, 
 therefore, they are an integral part of 
 the domestic economy ; and the family 
 continues for a time to have a local hab- 
 itation and a name after its surviving 
 parent's death. The parent's domicil, 
 therefore, is consequently and unavoid- 
 ably the domicil of the child. But a 
 waid is not naturally or necessarily a 
 part of his guardian's family ; and 
 though the guardian may appoint the 
 place of the ward's residence,it may be 
 and usually is a place distinct from his 
 own. When an infant has no parent, 
 the law remits him to his domicil of 
 origin, or to the last domicil of his sur- 
 viving parent ; and why should this 
 natural and wholesome relation be dis- 
 turbed by the coming in of a guardian, 
 when a change of the infant's domicil 
 is not necessary to the accomplishment 
 of any one purpose of the guardian- 
 ship ? ' But waiving the decision of the 
 question, and granting the guardian may, 
 
 360 
 
 for some purposes, change the ward's 
 domicil, the judge says, applying the 
 law to the case then before the court : 
 ' Yet if he may not exercise the power 
 purposely to disappoint those who 
 would take the property by a particular 
 rule of succession (and nearly all agree 
 that even a parent cannot), how can he 
 be allowed to exercise it so as obviously 
 and unavoidably to injure the ward him- 
 self ?' Anditwasonthegroundhere sug- 
 gested that the decision turned. Where 
 an infant has no parent, — the case 
 supposed by the judge, — there may be 
 muclx force in the reasoning ; and there 
 certainly is great justice in the senti- 
 ment and force in the argument in sup- 
 port of the authority of the parent. 
 But may not the same reasoning be 
 applied, and with equal propriety and 
 force, to support the right of the sur- 
 viving mother who has married the 
 second time, especially where the nur- 
 ture and education of a daughter is con- 
 cerned ? Should her marrying again 
 deprive her of the right to have the cus- 
 tody, care, and supervision of the edu- 
 cation of her infant children, or them 
 of maternal sustenance and protection ? 
 Is it the less indispensable (in the very 
 appropriate language of the learned 
 judge) that the infant children, daugh- 
 ters especially, be brought, up in the 
 bosom and as part of the family of 
 which the mother is one of the united 
 head, without which she could not per- 
 form the duty she owes them, or receive 
 from them the homage to which she is 
 entitled ? Maternal care and instruc- 
 tion are not the less her duty and their 
 right in consequence of her second mar- 
 riage. They are no less a part of the 
 domestic economy, and equally entitled 
 to membership in her family. There can 
 be no reason why her domicil, the domicil 
 of her choice, should not be theirs, if 
 she and her husband unite in making 
 it such. When an infant has no par- 
 ent, the law, it is true, remits him to 
 his domicil of origin, or to the last 
 
§ 258.] 
 
 DOMICIL OP INFANTS. 
 
 [chap. XI. 
 
 guardian of E. Subsequently W. emigrated from Mississippi, 
 to avoid payment of his debts, leaving his guardianship account 
 
 domicil of his parent. But when he 
 has a surviving mother, it is difficult 
 to perceive the justice or propriety 
 there would be in not permitting her 
 to make her domicil that of her chil- 
 dren. It may be different to some ex- 
 tent in European society, but in the 
 society of this country, the habits and 
 sentiments of our people, our ideas of 
 domestic economy, would be opposed 
 to denying the mother, upon her second 
 marriage, the custody of her infant 
 children. In older communities it may 
 not be unusual for children who have 
 parents to have others appointed their 
 guardians ; and then it may be truly 
 said that the ward is not naturally or 
 necessarily a part of the guardian's 
 family ; and so it may be said where 
 the ward has no parent. But in this 
 country it cannot be said, I apprehend, 
 in general, where the ward has a mother 
 whose husband is the guardian of her 
 child. There may be cogent reasons 
 why, for the benefit of her ward, the 
 mother may wish to change her abode 
 and that of her ward. Immigration here 
 from our old sister States is the natural 
 order of things ; and mothers who have 
 married a second time may have as good 
 reasons for changing the domicil of their 
 children for their mutual advantage as 
 others. If they, or their husbands, are 
 the guardians of their children, it is 
 difficult to assign any reason in support 
 of the right of parents to change the 
 domicil of their children which would 
 not apply to them, where, for the mutual 
 advantage of both parties, they desired 
 the change. It is admitted that a 
 widow, sui juris, may change the dom- 
 icil of her children, she being their 
 guardian. If she should marry after 
 making the change of domicil, the law 
 would not remit the children to her 
 former domicil. Then why should their 
 domicil be unalterably fixed by the 
 fact of her marriage, when she may 
 marry with a view to the same change 
 of her place of abode which she would 
 
 have effected had she remained a widow ? 
 There may be more reason to deny the 
 right of a guardian to change the domi- 
 cil of his ward in governments which 
 deny the right and power of expatria- 
 tion, and the obligation of allegiance is 
 held to be perpetual, than in this coun- 
 try, where the right of expatriation is 
 admitted. There doubtless is good rea- 
 son and sound policy in requiring that 
 the change be made loTia fide and with- 
 out fraud ; and holding the change in- 
 efi^ectual where the guardian should 
 change the domicil of a child who was 
 sick, with no other apparent object 
 than that of removing him from a 
 place in which, according to the law 
 of succession, the guardian would not 
 succeed to the child's estate, to another 
 place which admitted the guardian to 
 such succession. Such a removal may 
 be justly deemed a fraud upon those 
 who would have succeeded if no re- 
 moval had taken place. So if the re- 
 moval be purposely to the detriment of 
 the interest of the ward, or to enable 
 the guardian to incumber or convert to 
 his own use the property of his ward, 
 it may be deemed fraudulent as to the 
 ward himself, and may justly be held 
 not to effect a change of his domicil. 
 And to this effect, the case of The School 
 Directors v. James, 2 Watts & S. 572, 
 in which the opinion of Chief Justice 
 Gibson (from which I have quoted at 
 so much length) was delivered, is a 
 strong authority. The court maintain 
 decidedly that whatever may be the 
 power of the guardian over the person 
 and property of the ward, he cannot 
 exercise it so as to injure the ward him- 
 self. The very end and purpose of his 
 office is protection, and there is no 
 imaginable case, the court say, in which 
 the law makes it an instrument of in- 
 jury by implication. Where the guar- 
 dian acts fairly and within the scope 
 of his authority, the ward must bear 
 the consequences, because he must bear 
 those risks that are incident to the 
 
 361 
 
§ 258.] 
 
 THE LAW OP DOMICIL. 
 
 [chap. 
 
 XI. 
 
 unsettled, and with his wife took up his residence, first in 
 Texas, and afterwards in Arkansas, taking with him E. and 
 
 management of his affairs ; but that is 
 a different thing from burdening him 
 with a loss as a legal consequence of the 
 relation. And accordingly it was held, 
 in a suit free from fraud, that the guar- 
 dian could not change the domicil, so 
 as to subject the property of the ward 
 to liability for taxation in the domicil 
 of the guardian. If the law will not 
 permit the office of guardian to become 
 the instrument of injury by any possible 
 legal consequence or implication, much 
 less will it by the intentionally wrong- 
 ful, fraudulent, or unauthorized act of 
 the guardian. He can acquire no right 
 by such fraudulent or unauthorized act. 
 But the charge of the court made the 
 removal of the guardian from the State 
 of Mississippi to avoid the payment of 
 his own debts, coupled with the fact of 
 his failure to settle his guardianship 
 with the probate court before his re- 
 moval, such a fraud, per se, as to pre- 
 vent a change of the domicil of his 
 ward. And the effect of this charge 
 cannot be said to have been effaced by 
 the instruction given'at the instance of 
 the defendant, with the subjoined quali- 
 fication. The jury were still left at 
 liberty to find that there was no change 
 of domicil in contemplation of law, if 
 the guardian left Mississippi to avoid 
 the payment of his debts, and without 
 settling with the probate court ; or if 
 there were ' other facts going to show a 
 wrongful intent, ' without being informed 
 in what the wrongful intent must con- 
 sist, otherwise than as they might de- 
 duce it from the preceding portions of 
 the charge, which, taken altogether, 
 was not quite consistent. The jury 
 would very naturally infer from the 
 charge that, if the guardian had acted 
 in fraud of his own creditors, in effect- 
 ing a change of domicil, they might find 
 that the domicil of the ward was not 
 changed by the removal, although the 
 conduct of the guardian may not have 
 been fraudulent as to those entitled to 
 succeed to the property of the ward in 
 
 362 
 
 case of her death, or fraudulent or in- 
 jurious in relation to the ward herself. 
 As there was evidence from which the 
 inference might be very readily drawn 
 that the guardian had acted fraudulently 
 as to his creditors, the charge of the 
 court in this respect was calculated to 
 mislead. Its tendency as a whole, we 
 think, was to mislead upon this point ; 
 and for that reason it must be held to 
 be erroneous. The failure to account, 
 as guardian, to the court in Mississippi, 
 was a circumstance which might be 
 looked to in connection with others 
 to ascertain the purpose of the guar- 
 dian ; so might his after management 
 and dealing with the property of his 
 ward ; but his failure to give an account 
 in Mississippi of his guardianship can- 
 not be deemed conclusive evidence of 
 a change of domicil purposely to defraud 
 those entitled to the succession, or that 
 in its consequences it was intentionally 
 or necessarily injurious to the ward her- 
 self. Although it may be true that the 
 guardian left Mississippi to avoid the 
 payment of his debts, that could not be 
 otherwise material than as showing that 
 the primary object he had in view was 
 not the benefit of his ward. It does not 
 follow that there was an intention to 
 defraud her, or those who might suc- 
 ceed to her rights of property, or 
 that the removal was injurious to her. 
 That fact, and the circumstance of the 
 failure of the guardian to account, were 
 not suficient, in themselves, to prevent 
 a change of the ward's domicil ; yet 
 the charge of the court was calculated 
 to induce that belief on the part of the 
 jury ; and as it may have been the 
 cause of their verdict, the judgment 
 must be reversed aud the cause re- 
 manded." 
 
 This case seems to be supported by 
 Succession of Lewis, 10 La. An. 789, 
 where the child accompanied her re-mar- 
 ried mother, who was also her guardian. 
 The Louisiana Court, however, denies 
 the general power of a guardian to 
 
§ 259.] DOMICIL OF INFANTS. [CHAP. XI. 
 
 her personal property. Under these circumstances, the Su- 
 preme Court of Texas held that the domicil of E. was changed. 
 But the court, "Wheeler, J., delivering the opinion, after arguing 
 strongly and at considerable length in favor of the power of 
 a re-married mother to change the domicil of her child by her 
 first marriage, seems to put the decision upon a concurrence 
 of the maternal control with that of the guardian, apparently 
 relying, however, more strongly upon the former than the 
 latter. 
 
 In Afflick's Estate,^ Wiley, J., without giving reasons or 
 authorities, declares his opinion that a ward's domicil may be 
 changed by his guardian as it may be by his parent. But in 
 that case the change of domicil was decided against, the guar- 
 dian having been appointed by a court without jurisdiction. 
 Olin, J., who dissented, declined to express any opinion as to 
 the true domicil of the infant. 
 
 In none of these cases, however, notwithstanding the strong 
 expressions of opinion contained in some of them, was the 
 power of the guardian to change the national or quasi-na.tioaal 
 domicil of his ward directly and squarely decided. 
 
 § 259. Id. id. id. Cases in the Negative. — On the negative 
 side of the question, as it relates to national and quasi-national 
 domicil, are several cases. In Hx parte Bartlett,i as we have 
 seen, the power of the guardian was doubted. The same doubt 
 was expressed in Seiter v. Straub,^ and in School Directors v. 
 James ^ was extended even to cases of municipal domicil. In 
 Colburn v. Holland,* Dunkin, C. J., declares the question to 
 be unsettled. In Mears v. Sinclair,^ the Supreme Court of 
 West Virginia held that a testamentary guardian could not 
 change the domicil of her infant ward from one State to 
 another, even though such guardian was the mother, — she 
 having re-married. 
 
 change the domicil of his ward, and * 14 Rich. Eq. 176. 
 
 rests its decision upon the ground that ^ 1 W. Va. 185. This case is 
 
 the guardian in that case was the mother squarely in the face of Wheeler v. 
 
 of the ward. And see supra, § 250. Hollis. The minors accompanied their 
 
 7 3 MacAr. 95. mother from West Virginia, where their 
 
 1 i Bradf. 221. father was domiciled at the time of his 
 
 * 1 Demar. 264. death, to Ohio, where their mother be- 
 
 ' Supra. came domiciled. 
 
 363 
 
§ 259.] THE LAW OF DOMICIL. [CHAP. 
 
 XI. 
 
 In Daniel v. Hill,^ the Supreme Court of Alabama met the 
 question squarely, and decided against the power of the guar- 
 dian under these circumstances. The parents of McA. died, 
 domiciled in Alabama, when he was only a few months old ; 
 his maternal aunt, upon the death of his parents, in pursu- 
 ance of their request, took the care and control of him, and 
 shortly afterwards her husband, D., was 'appointed guardian of 
 the infant by the proper court, and McA. remained 'in their 
 family until his death. After being appointed guardian, D. 
 removed to Mississippi, taking with him his ward, who shortly 
 before his death, and at the age of eighteen or nineteen years, 
 made a will in favor of D. and wife. By the laws of Alabama 
 he was capable, and by those of Mississippi incapable, of 
 making a will of his personal property at that age. Under 
 these circumstances the court held him to be domiciled in 
 Alabama, and the will to be valid. Brickel, C. J., in de- 
 livering the opinion, remarked: "It is settled in this court 
 that a guardian cannot change the domicil taken by his 
 ward at the place of his birth, or acquired from the father at 
 his death. The testator was born in this State, his parents 
 had their last domicil here, and guardianship of his person 
 and estate was granted by a court of this State. Though he 
 accompanied his guardian to Mississippi, on his change of 
 residence to that State, he retained the domicil of his birth, 
 and his testamentary capacity must be measured by the law 
 of this State." Mears v. Sinclair, and Daniel v. Hill, must 
 both be regarded as direct decisions upon the question under 
 discussion. 
 
 The latest utterance upon this subject is from the Supreme 
 Court of the United States, in Lamar v. Micou;^ to the able 
 opinion of Gray, J., in which case, reference has already been 
 made. He says, further : " The ward does not derive a domi- 
 cil from any other than a natural guardian. A testamentary 
 guardian, nominated by the father, may have the same con- 
 trol of the ward's domicil that the father had. And any 
 guardian, in the State of the domicil of the ward, has been 
 
 « 52 Ala. 430. to the effect that none but a natural 
 
 ' 112 U. S. 452, 471 ; Succession of guardian can change the domicil of his 
 Lewis, 10 La. An. 789, may also be cited ward. 
 
 364 
 
§ 261.J DOMICIL OP INFANTS. [CHAP. XI. 
 
 generally held to have the power of changing the ward's dom- 
 icil from one county to another within the same State, and 
 under the same law. But it is very doubtful, to say the least, 
 whether even a guardian appointed in the State of the domicil 
 of the ward (not being the natural guardian or a testamentary 
 guardian) can remove the ward's domicil beyond the limits of 
 the State in which the guardian is appointed, and to which 
 his legal authority is confined. And it is quite clear that a 
 guardian appointed in a State in which the ward is tempora- 
 rily residing cannot change the ward's permanent domicil 
 from one State to another." 
 
 § 260. Id. id. id. G-eneral Results of the American Cases. — 
 The doctrine which we may extract from the American cases 
 may be thus stated : (1) That a guardian has the power to 
 change the municipal domicil of his ward. (2) That the 
 domicil of the ward is not necessarily that of his guardian. 
 (3) That the natural guardian certainly, and the testamen- 
 tary guardian probably ,i has the power to change the national 
 or quasi-na,tional domicil of his ward, unless expressly pro- 
 hibited by a competent court. (4) That the power of an ap- 
 pointed guardian to change the national or g'wasi-national 
 domicil of his ward is, to say the least, very doubtful. 
 
 § 261. General Reasons against the Fo'wer of the Guardian 
 to change the National or quasi-National Domicil of his Infant 
 Ward. — It will be observed that most of the discussions on 
 this subject have had, for their ultimate point of controversy, 
 the power of the guardian to affect the personal succession of 
 his ward, and it is customary for those who maintain the 
 negative to argue that he cannot be allowed to change his 
 ward's domicil, because he could thereby control the distribu- 
 tion of the personal estate of the latter in case of his death. 
 But this method of reasoning, as has already been pointed 
 out, is illogical, and gives but a limited view of the subject. 
 There are difficulties back of the danger of fraudulent design 
 on the part of the guardian. One of them is that already 
 
 1 Mears v. Sinclair is apparently an between testamentary and appointed 
 
 authority to the contrary. But the guardians with reference to their power 
 
 attention of the court does not seem to over the domicil of their wards, 
 have been directed to the distinction 
 
 365 
 
§ 262.] THE LAW OP DOMICIL. [CHAP. XI. 
 
 alluded to in the language of Wickens, V. C.^ The parental 
 relation is natural and universal, while that of guardianship 
 is artificial, and, to a certain extent at least, local and limited. 
 It is true that among continental jurists it is generally ac- 
 cepted as settled that the guardian appointed by competent 
 authority at the place of the ward's domiciP is to be every- 
 where recognized as by right entitled to the care and custody 
 of the ward's person and movable property ; ^ yet this view, 
 in the language of Story, " has certainly not received any 
 sanction in America, in the States acting under the jurispru- 
 dence of the common law. The rights and powers of guar- 
 dians are considered as strictly local, and not as entitling 
 them to exercise any authority over the person or personal 
 property of their wards in other States, upon the same general 
 reasoning and policy which have circumscribed the rights and 
 authorities of executors and administrators." * 
 
 It is true that such domiciliary appointment will be consid- 
 ered as an important element in determining the custody of 
 the child ; yet the grant of such custody to the foreign guar- 
 dian is purely in the discretion of the court within whose 
 jurisdiction the child may be found, and will be made or not, 
 according to circumstances, as it appears to be for the best 
 interests of the child." And this is substantially the British 
 doctrine also.® 
 
 § 262. Id. — Again, the authority of a guardian is not only 
 local, but it is also limited. A guardian is but an officer of 
 the court appointing him, is subject to its control and super- 
 vision in all things, and has no powers except such as are 
 
 1 See supra, § 254. worth v. Spring, 4 Allen, 321; Moirell 
 
 '^ Of course this statement extends v. Dickey, 1 Johns. Ch. 153 ; Kraft v. 
 
 only to those jurists who adhere to domi- Wiokey, 1 Gill & J. 322. 
 oil as the basis of private international * Story, Confl. of L. § 499; Milliken 
 
 rights, the new school of European ju- v. Pratt, 125 Mass. 374, 378, and the 
 
 rists substituting nationality for domioil. cases cited in last note. 
 
 « Savigny, § 380 (Guthrie's trans, p. 6 Woodworth v. Spring, supra; Mil- 
 
 303) ; Bar, § 106 (Gillespie's trans, p. liken v. Pratt, supra. 
 431 el seq.); Story, §§ 495-498 and 500 6 Johnstone «. Beattie, 10 CI. & Fin. 
 
 et seq., and authorities cited ; Wharton, 42, as modified by Stuart v. Bute, 9 
 
 Confl. of L. § 259 et seq., and authorities H. L. 440 ; Dawson v. Jay, 3 De G. M. & 
 
 cited; "Westlake, Priv. Int. L. 2d ed. G. 764; Nugent v. Vetzera, L. E. 2 Eq. 
 
 § 6; Dicey, Dora. p. 172 et se?.; Hoyt v. 704 ; Di Savini v. Lousada, 18 "W. E. 
 
 Sprague, 103 U. S. 618, 631 ; Wood- 425 ; Westlake, loc. cit. ; Dicey, loc. cit. 
 366 
 
§ 262.] DOMICIL OP INFANTS. [CHAP. XI. 
 
 conferred upon him by his appointment, or by the laws of 
 the place where his appointment is made. The ward is thus 
 under the care of the court ; and that it would, under ordinary 
 circumstances, decree, or even sanction a change of his domi- 
 cil, and thus deliver him over to the jurisdiction of foreign 
 laws, seems doubtful. It will allow him to be taken abroad 
 for the benefit of his health, for education, and sometimes 
 even for nurture ; but in some cases, only on security being 
 given that he shall be brought back within the jurisdiction 
 when required. 1 It by no means follows that such a change 
 of residence will accomplish a change of domicil.^ 
 
 Nor will the domiciliary court alone take such view. The 
 courts of the place where the ward is found, having due 
 regard, however, to the welfare and interests of the ward, 
 will sometimes, even though another guardian has been there 
 appointed for him, restore him to the custody of his domicil- 
 iary guardian, in order that he may be returned to his own 
 State or country,^ or will, under proper circumstances, carry 
 out the directions of the domiciliary court with respect to 
 him, so far as may be consistent with the laws of their own 
 country.* 
 
 But as applications in such matters are not grantable of 
 right, but rather addressed to the discretion of the court, it is 
 apparent that conflict may arise between the courts of several 
 States or countries with respect to the guardianship, custody, 
 and residence of the same minor, — as actually occurred in 
 the Dawson case^ between the New York courts and the Eng- 
 lish Court of Chancery, — and if under such circumstances 
 necessity should arise for the application of the principle of 
 domicil, — for example, to determine his general testamentary 
 capacity, or, in event of his death, his personal succession, 
 — conflicting views with regard to his domicil would doubtless 
 be held by such courts. 
 
 ' Jeffreys v. Vanswartswarth, Bar- ' Nugent v. Vetzera, supra ; Wood- 
 
 nardiston, 144 ; Johnstone ». Beattie, worth v. Spring, supra. 
 10 CI. & Fin. 42, 128, 139. * Di Savini v. Lousada, supra ; see 
 
 2 See Lord Campbell's remarks in also Nugent v. Vetzera, siipra. 
 Johnstone v. Beattie, 10 CI. & Fin. 42, ^ Ex parte Dawson, 3 Bradf. 130 ; 
 
 139, 140. Dawson v. Jay, 3 De G. M. & G. 764. 
 
 367 
 
§ 263.J THE LAW OF DOMICIL. [CHAP. XI. 
 
 § 263. Id. — To avoid such perplexities, it seems better to 
 hold strictly to the view that an appointed guardian has no 
 power to change the national or 5'Ma«i-national domicil of his 
 infant ward, without the express direction or consent of the 
 proper domiciliary tribunal appointing him. With respect, 
 however, to a testamentary guardian, it seems reasonable to 
 hold that he may, especially in pursuance of the direction of 
 the deceased father (as was the case in White v. Howard) 
 change the domicil of his infant ward to another State or 
 country, unless expressly prohibited by a competent domicil- 
 iary tribunal. 
 
 368 
 
§ 264.J DOMICIL OP NON COMPOTES. [CHAP. XII. 
 
 CHAPTER XII. 
 
 DOMICIL OP PARTICULAR PERSONS (continued'), — NON COMPOTES 
 AND PAUPERS. 
 
 (a) Non Compotes. 
 
 § 264. The general principles relating to the domicil of per- 
 sons non compotes are substantially the same as those relating 
 to the domicil of minors. Much, therefore, that has been here- 
 tofore said with regard to the latter subject may be applied 
 to the former. 
 
 As a general rule, one who is of unsound mind is incapable 
 of choosing a domicil for himself, because he is incapable of 
 forming the intention requisite to acquire a new domicil.^ 
 This is particularly true with regard to persons who are usu- 
 ally classed as idiots and lunatics, and are wholly, or almost 
 entirely, bereft of reason and understanding. But it does not 
 follow that the same incapacity would attach to all degrees of 
 mental disturbance, and it would be difficult indeed to lay 
 down any general rule which would serve to fix the line 
 dividing capacity to change domicil from incapacity. 
 
 This subject was considered at some length in the New 
 Hampshire settlement case of Concord v. Rumney,^ where 
 Bell, C. J., says : " Insanity may exist in various degrees, from 
 the slight attacks which are hardly distinguishable from 
 eccentricity, to the most raving and uncontrollable madness. 
 It may be general, seeming to affect all the operations of the 
 mind upon all subjects, or it may exist only in reference to a 
 small number of subjects, or a single subject ; the mind in 
 such cases of partial insanity seeming to be in its habitual 
 and natural condition as to all subjects and matters which do 
 
 1 Sharpe v. Crispin, L. E. 1 P. & D. Payne v. Danham, 29 111. 125 ; Ander- 
 
 611 ; Hepburn v. Skirving, 9 W. E. son v. Anderson, 42 Vt. 350. 
 764 ; Strong v. Farmington, 74 Me. 46 ; M5 N. H. 423. 
 Washington v. Beaver, 3 W. & S. 548 ; 
 
 24 369 
 
I 265.J THE LAW OF DOMICIL. [CHAP. XII. 
 
 not come within the scope of the partial disease. In no case 
 at the present day is it a mere question whether the party is 
 insane. The point to be established is, whether the party is 
 so insane as to be incapable of doing the particular act with 
 understanding and reason. This would be the essential ques- 
 tion now, where marriage is alleged to be void by reason of 
 insanity, and the same test would be applied in determining 
 the question of capacity to change the domicil : Had the party 
 at the time sufficient reason and understanding to choose her 
 place of residence ? " In that case a woman, insane at the 
 time of her marriage and afterwards, and whose marriage was 
 declared in another proceeding to be null and void for that 
 cause, was held to have gained a settlement by her residence 
 in the house of her supposed husband, it being found that she 
 had intellect sufficient to choose a home. 
 
 In Culver's Appeal,^ a person of weak mind, but not to a 
 degree which prevented him from distinguishing between right 
 and wrong, or from determining where he preferred to reside 
 and have his home, and for whom a conservator was appointed, 
 changed his place of abode from one town to another within 
 the State, and continued to reside in the latter town, with 
 the consent of his conservator, and it was held that his domi- 
 cil was thereby changed. The same doctrine was held by 
 Wilde, J., in Holyoke v. Haskins,* also a case of municipal 
 domicil, and has been applied in a number of settlement 
 cases ;^ but it has never been extended to cases of national 
 or gwasi-national domicil. 
 
 § 265. Relation of Guardian to the Domicil of bis Insane Ward. 
 — The relation of a guardian to the domicil of his insane ward 
 is substantially the same as the relation of a guardian to that 
 of his minor ward. 
 
 8 48 Conn. 304. Loomis, J., says ; Ing a domicil sufficient to enaUe the 
 
 "Although a, person lawfully under a com-t, after his decease, to probate his 
 
 conservator must be presumed incapable will." 
 of managing his affairs, so that he can * 5 Pick. 20. 
 
 make no binding contract with another, ^ E.g., Corinth v. Bradley, 51 Me. 
 yet it seems to us it does not necessarily 540 ; Ludlow v. Landgi-ove, 42 Vt. 137 ; 
 imply that the person is incapable of Auburn v. Hebron, 48 Me. 832 ; Buck- 
 exercising such intent and performing land v. Charlemont, 3 Pick. 173, and 
 such acts as may, with the simple assent others, 
 of his conservator, result in establish- 
 
 370 
 
§ 266.] DOMICIL OF NON COMPOTES. [CHAP. XII. 
 
 First. The domicil of the guardian is not necessarily that 
 of his ward.i 
 
 Second. He appears to have the power to change his ward's 
 municipal domicil.^ The Vermont case of Anderson v. An- 
 derson was somewhat peculiar. The facts were that A., who, 
 prior to his insanity, resided with his wife in Woodstock, was 
 removed by his guardian to the lunatic asylum in Brattleboro ; 
 after which the guardian, who was also the father-in-law of A., 
 took his daughter, A.'s wife, to his own home in Montpelier, 
 where she remained until A.'s death in the asylum. Upon 
 these facts it was held that A.'s domicil at the time of his 
 death was at Montpelier, and that the probate court there had 
 jurisdiction of his estate. 
 
 Third. With respect to the power of the guardian to change 
 the national or quasi-n.a,tional domicil of his insane ward, much 
 that has already been said with respect to the guardianship of 
 minors is applicable. It does not appear ever to have been 
 held, either in this country or in England, that he has such 
 power. Phillimore ^ thinks he has, and rests his opinion upon 
 several Scotch cases,* which, however, do not seem to bear him 
 out. Westlake ^ and Dicey ^ maintain the opposite view, and 
 upon general principles there appears no good reason why the 
 guardian should be held to possess such power. 
 
 § 266. French Law. — In France under the old law, when 
 that country was broken up into numerous legal territories, 
 each having its own customary law, according to Merlin,^ the 
 domicil of the interdit was not changed by his removal from 
 one territory to another, but he retained either his domicil of 
 
 1 Holyoke v. Haskins, supra ; Cntts * Priv. Int. L. 1st ed. no. 52, p. 48 ; 
 V. Haskins, 9 Mass. 543 ; Anderson v. Id. 2d ed. § 239. 
 
 Anderson, supra ; Culver's Appeal, svr « Dom. pp. 132, 133. Wlarton ap- 
 
 pra. pears to concur in the same opinion. 
 
 2 Anderson v. Anderson, swpra ; Confl. of L. §§ 52 and 42. Lord Pen- 
 Cutts «. Haskins, swpra; Holyoke «. zance, in Sharps «. Crispin, SMpra, says : 
 Haskins, supra. "It is not difficult to conceive cases in 
 
 ' Dom. no. 101, p. 55 ; Int. L. vol. which great injustice might be done to 
 
 iv. no. 91. the interests of others if the general 
 
 * Morrison's Case, Eobertson, Pers. proposition were admitted that the cus- 
 
 Suc. pp. 113, 114, and Leith ». Hay, id. tody of a lunatic necessarily carried 
 
 p. 114, note. Robertson, however, does with it the power of changing his domi- 
 
 not consider them authorities to this cil at will." 
 efiject. ^ Eepertoire, verl. Dom. § 5, no. 4. 
 
 371 
 
§ 268.] THE LAW OF DOMICIL. [CHAP. XII. 
 
 origin, or that which he had chosen before his interdiction. 
 But under the Code Civil,^ which applies domicil mainly to 
 purposes of domestic law, it is otherwise, the provision being : 
 " The major interdit shall have his [domicil] with his tutor ; " 
 and this is understood by French jurists to be a dependent 
 domicil, irrespective of the actual residence of the interdit. 
 To such an extent have some carried this principle that they 
 hold that the domicil of the wife of the interdit is necessarily 
 that of her husband's tuteur? Demolombe demonstrates the 
 proposition with the remorseless logic of a syllogism, thus : 
 " A married woman has no other domicil than that of her 
 husband ; now the interdicted husband has his domicil with his 
 tuteur ; therefore the wife has her domicil with the tuteur of 
 her husband." This doctrine is denied by others ; * and it is 
 generally held that if the wife of one who is interdit for the 
 cause of insanity has been appointed his tutrice she has the 
 power to change his domicil by changing her own. 
 
 § 267. Relation of Father to the Domicil of his Insane Major 
 Child. — With respect to the relation of a father to the domicil 
 of an insane major, two propositions may be laid down : — 
 
 First. The domicil of a lunatic who has become such 
 after reaching his majority is not changed by the change of 
 his father's domicil, even though he be at the time a member 
 of his father's family, but remains that which it was at the 
 commencement of his insanity. This was expressly decided 
 in the Massachusetts settlement case of Buckland v. Charle- 
 mont,i and has the support of Lord Penzance in Sharpe v. 
 Crispin,^ and of Westlake.^ 
 
 § 268. Id. But, second, the domicil of a son, who has 
 never been of sound mind since attaining his majority, con- 
 tinues to follow the changes of his father's domicil, particu- 
 
 2 Art. 108. * Duranton.Coursde Droit Fran9ai8, 
 
 " Demolombe, Cours de Code Ka- t. 1, no. 366 ; Demolombe, Cours de 
 
 poUon, t. 1, no. 363 ; Duranton, Cours Code NapoUon, t. 1, no. 363 ; Mersier, 
 
 de Droit Franjais, t. 1, no. 371 ; Mass^ Traits, etc. des Actes de I'itat Civil, 
 
 et Vergi sur Zaobariae, t. 1, § 89, note no. 139. 
 
 7, p. 123 ; Marcad^, Explication, etc., i 3 Pick. 173. 
 
 du Code NapoUon, art. 108, no. 1 ; = L. R. 1 P. & D. 611, 618. 
 
 Richelot, t. 1, no. 244 ; and Aubry et » Priy. Int. L. 2d ed. § 239. 
 
 Rau sur Zachariae, t. 1, § 143, note 7, 
 
 p. 580. 
 
 372 
 
§ 268.] DOMICIL OP NON COMPOTES. [CHAP. XII. 
 
 larly if he continues to be a member of his father's family ; 
 "the incapacity of lunacy being a mere prolongation of the 
 incapacity of minority." ^ This has been laid down by Lord 
 Penzance in the case just referred to, ahd has been expressly 
 decided in several American settlement cases.^ Lord Penzance 
 says : " I can find no authority which defines the effect of a 
 change of domicil in the father upon a lunatic son. It would 
 probably depend upon circumstances. If a man had grown 
 up, married and established himself in business in the country 
 of his original domicil, and had afterwards become lunatic, 
 and in that state had been taken charge of by his father, the 
 emigration of his father to a foreign country with the view 
 of becoming domiciled there, taking his son with him, might 
 fail to work a change in the domicil of that son. It is not 
 difiBcult to conceive cases in which great injustice might be 
 done to the interests of others, if the general proposition were 
 admitted that the custody of a lunatic necessarily carried with 
 it the power of changing his domicil at will. But the hy- 
 pothesis under which I am now considering the circumstances 
 of the present case is free from the necessity of asserting any 
 such general proposition. For I am assuming that George 
 Crispin was of unsound mind throughout his majority ; in 
 other words, that there never was a period during which he 
 could think and act for himself in the matter of domicil other- 
 wise than as a minor could. And if this be so, it would seem 
 to me that the same reasoning which attaches the domicil of 
 the son to that of his father, while a minor, would continue to 
 bring about the same result after the son had attained his 
 majority, if he was continuously of unsound mind. The son 
 in this case continued under the control of his father, was 
 presumably supported by him, and if he had not already been 
 in England when his father returned hither in 1843, would, it 
 may reasonably be presumed, have been brought with him. 
 At no period could he, according to the hypothesis, have acted 
 
 1 Westlake, Priv. Int. L. 2d ed. 36 Me. 390 ; Corinth v. Bradley, 51 id. 
 § 240. So also Wharton, Confl. of L. 540 ; Oxford v. Eumney, 3 N. H. 331 ; 
 § 53. Upton V. Northbridge, 15 Mass. 237 ; 
 
 2 Wiscasset v. "Waldoborough, 3 Washington v. Beaver,' 3 W. & S. 
 Greenl. 388 ; Tremont d. Mt. Desert, 548. 
 
 373 
 
§ 270.] THE LAW OP DOMICIL. [CHAP. XII. 
 
 for himself in choosing a domicil, and if his next of kin and 
 those who had control of his movements and life were not 
 capable of changing his domicil, that domicil would, from the 
 moment of his majority, have become indelible. The better 
 opinion, in my judgment, is, that the incapacity of minority, 
 never having in this case been followed by adult capacity, 
 continued to confer upon the father the right of choice in the 
 matter of domicil for his son, and that in 1843, if not before, 
 that right was exercised by the adoption of an English domicil 
 for himself, which drew with it a similar domicil for his son." 
 § 269. Domicil of Insane Person not changed by Removal 
 to Asylum. — An insane person does not change his domicil 
 by being removed to an insane hospital in another town or 
 county ,1 no matter whether he is placed there by his guardian, 
 or by the authorities of the municipal division charged with 
 his support. And upon the same principle in an Iowa case,^ it 
 was held that an insane and helpless pauper, who, after for 
 some years dwelling with her brother in B. County, moved 
 with him, with the consent of the poor-authorities of said 
 county who were charged with her support, to P. County, 
 where they for some time continued to support her, did not 
 thereby change her settlement. 
 
 (b) Paupers. 
 
 § 270. Domicil of Pauper not changed by Removal to Poor- 
 house. — Analogous to the case of persons of unsound mind 
 who are confined in an insane hospital, is that of paupers who 
 are maintained at the public charge at a county poor-house. 
 This involves only municipal domicil. It has been frequently 
 held in American cases that a pauper in such circumstances 
 neither gains a new domicil in the municipal division in which 
 the poor-house is located, nor loses his domicil in that from 
 which he has been removed.^ The grounds upon which this 
 
 1 Pittsfield V. Detroit, 53 Me. 442 ; 57 ; Fayette Co. v. Bremer Co., 56 id. 
 
 Dexter v. Sangerville, 70 id. 441 ; 516. 
 
 Strong V. Farmington, 74 id. 46 ; An- * Fayette Co. v. Bremer Co., supra. 
 derson v. Anderson, 42 Vt. 350 ; Clark l Yarmouth v. North Yarmouth, 44 
 
 V. Whitaker, 18 Conn. 543 ; Freeport Me. 352 ; Freeport v. The Supervisors, 
 
 V. The Supervisors, 41 111. 495 ; Wash- mpra ; Dale v. Irwin, 78 111. 160 ; 
 
 ington Co. o. Mahaska Co., 47 Iowa, Clark v. Eohinson, 88 id. 498 j Covode 
 
 374 
 
§ 271.] DOMICIL OP PAUPERS. [CHAP. XII. 
 
 rule is put are well stated by "Walker, C. J., in Preeport v. The 
 Supervisors. He says: "As a general rule, persons under 
 legal disability or restraint, persons of non-sane memory, or 
 persons in want of freedom, are incapable of losing or gaining 
 a residence by acts performed by them under the control of 
 others. Thus the residence of the wife or minor child usually 
 follows that of the husband or parent. There must be an exer- 
 cise of volition by persons, free from restraint, and capable of 
 acting for themselves, in order to acquire a residence. A per- 
 son imprisoned under the operation of law does not thereby 
 change his residence. So of a lunatic legally confined in an 
 asylum. As these acts are involuntary, there can be no pre- 
 sumption of the necessary intention to change the residence. 
 So of femes covert and minors. And 'no reason is perceived 
 why the maintenance of a pauper at the poor-house should form 
 an exception to the rule. He is placed there by the officers 
 of the law, and in pursuance of its requirements. The act 
 cannot be said to be voluntary, but is induced from necessity. 
 Inability for self-support renders it necessary that the pauper 
 should be supported as a public charge, and the law has des- 
 ignated what political division of the people shall be charged 
 with the support, and has, therefore, given the body the means 
 of controlling the acts of the pauper to the extent necessary 
 to render it convenient for his support. So soon as he be- 
 comes a charge, and while he remains so, he ceases to be 
 a free agent, but is in the hands, and to a certain extent 
 under the control, of the public officers intrusted with the 
 execution of the poor-laws. ... By being removed to the 
 county poor-house these persons did not lose their residence 
 in the town of Preeport, nor did they gain a settlement in the 
 town of Silver Creek." 
 
 A former pauper in an almshouse, who has been discharged 
 as such, but who remains in the institution under contract of 
 service for hire, may thereby gain a domicil in the place 
 where the almshouse is located.^ 
 
 § 271. Inmates of Hotel des Invalides in France, and of Sol- 
 diers' Homes in this Country. — In Prance it has been decided 
 
 V. Foster, 4 Brewst. 414 ; Munroe v. ^ Be Registry Lists, 10 PhUa. 213. 
 Jackson, 2 Cong. El. Gas. 101. 
 
 375 
 
§ 271.] THE LAW OF DOMICIL. [CHAP. XII. 
 
 that the HStel des Invalides " forms the domicil and perma- 
 nent habitation of those who are admitted to it, there to pass 
 the rest of their lives, and there to enjoy the repose which 
 their honorable services have merited." ^ This doctrine might 
 be of some importance in this country in its application to the 
 inmates of soldiers' homes, whose legal position with respect 
 to domicil can hardly be said to be identical with that of 
 paupers, the inmacy of the former being largely the result 
 of choice. 
 
 1 Demolomlie, Cours de Code NapoUon, t. 1, no. 354 ; Sirey et Gilbert, 
 Code Civil Annote, art. 102, note 13. 
 
 376 
 
§ 272.] DOMICIL OP PRISONERS, EXILES, ETC. [CHAP. XIII. 
 
 CHAPTEE XIII. 
 
 DOMICIL OP PARTICULAR PERSONS (^continued'), — PRISONERS, 
 
 § 272. DomicU not changed by Imprisonment. — As a general 
 rule, a person does not acquire domicil in the place where he 
 is imprisoned, but retains the domicil "which he had at the 
 time of his imprisonment;^ and this is so, whether he is im- 
 prisoned in pursuance of a criminal conviction or on civil pro- 
 cess ; as, for example, for debt. There is no English decision 
 upon this subject, but the rule has been recognized by text- 
 writers generally, and by numerous decided cases in Ireland, 
 Scotland, France, and this country. It has been put upon 
 several grounds, one (which, however, would not apply to 
 imprisonment for life) being that, inasmuch as the presence 
 of the prisoner at the place of his confinement is but tempo- 
 rary, he must be presumed to preserve the hope of return.^ 
 
 Another ground which has been assigned for the rule, and 
 probably the only true one, is that the presence of the prisoner 
 
 1 Burton v. Fisher, Milward, 183 ; Code Civil Annot(!, art. 102, and au- 
 
 Sharpe v. Orde, 8 S. (So. Sess. Cas. 1st thorities cited, notes 16-19; Phillimore, 
 
 ser. 1829), 49 ; Pittsfield v. Detroit, 53 Dom. no. 146 ; Story, Confl. of L. § 47; 
 
 Me. 442 ; Topshara v. Lewiston, 74 id. Westlake, Priv. Int. L. 1st ed. no. 52 
 
 236 ; Amherst v. Hollis, 9 N. H. 107 ; (but see also no. 53) ; Dicey, Dom. 
 
 Pawlet V. Rutland, Bray. 175 ; Man- p. 129 ; Wharton, Confl. of L. § 53. 
 
 Chester v. Rupert, 6 Vt. 291 (citing See also Hoi beck u. Leeds, 20 L.J. (n.s.) 
 
 also St. Albans v. Huntington, unre- (M. C.) 107. Most of the American 
 
 ported) ; Danville v. Putney, id. 512 ; cases cited above are cases of pauper 
 
 Woodstock «. Hartland, 21 id. 563; settlement, but the principles which they 
 
 Northfield v. Veshire, 33 id. 110 ; Bal- decide apply a fortiori to domicil. Ap- 
 
 timore v. Chester, 53 id. 315 ; Grant v. parently to the contrary are Reading v. 
 
 Dalliber, 11 Conn. 234 ; Freeport v. Westport, 19 Conn. 561, and Washing- 
 
 The Supervisors, 41 111. 495 ; Hardy ton v. Kent, 38 id. 249 ; but these oases 
 
 V. De Leon, 5 Tex. 211 ; Covode v. rest upon statutory provisions. 
 Foster, 4 Brewst. 414 ; Denizart, verb. ^ See, e. g., Merlin, Denizart, and 
 
 Dom. no. 20 ; Merlin, Repertoire, verb. Wharton, loc. dt., and Northfield v. 
 
 Dom. § 3, no. 4; Domat, Pub. L. bk. Veshire and Baltimore ii. Chester, sttpra. 
 1, t. 16, § 3, no. 14 ; Sirey et Gilbert, 
 
 377 
 
§ 274.J THE LAW OF DOMICIL. [CHAP. 
 
 XIII. 
 
 is not of his own volition but by constraint, and that, there- 
 fore, one of the main requirements for the acquisition of a 
 new domicil, that is, that it be freely chosen, is not fulfilled.^ 
 This ground, which seems to be supported by the reasoning in 
 the analogous cases of the pauper maintained in an alms- 
 house, and the insane person confined in an insane asylum, 
 would extend to cases as well of imprisonment for life as of a 
 temporary nature. As was well said by Church, J., in Grant 
 V. Dalliber, "The State prison [is] not his place of abode, 
 but his place of punishment, and while there he [is] absent 
 from home." 
 
 § 273. Prisoner taay acquire a Domicil 'where he is im- 
 prisoned. — It doubtless would be held that, notwithstanding 
 his compulsory presence, a prisoner might acquire a domicil 
 where he is confined, if it could be shown that he had formed 
 the intention of remaining after he became free to control his 
 movements ; but in such case very clear proof of such inten- 
 tion would be required.^ 
 
 § 274. Prisoner for Life. — With respect to the prisoner for 
 life, the doctrine does not appear to be settled. If the second 
 ground of the general rule stated above is the true one, it 
 would seem that his domicil is unchanged. Several cases 
 may be supposed ; namely, of (1) a person domiciled in Mas- 
 sachusetts who is imprisoned for life in New York or Canada ; 
 (2) a person domiciled in one town or county who is imprisoned 
 in another town or county of the same State; (3) a domi- 
 ciled Englishman who is transported to a penal colony for life. 
 In the first two cases it is difi&cult, in the entire absence of 
 
 ^ Westlake, Story, and Dioey, loc. dt., gained no settlement in Woodstock, 
 
 and Topsham o. Lewiston, Danville v. But suppose the case of a prisoner 
 
 Putney, Woodstock v. Hartland, Grant serving a sentence for a definite time, 
 
 V. Dalliber, andFreeport v. The Super- who takes a lease of a house at the 
 
 visors, supra. place of his confinement for a term ex- 
 
 1 In Woodstock i). Hartland, supra, ceeding that of his imprisonment, and 
 
 a prisoner on civil process for debt, who whose family is by his direction there 
 
 was admitted to the liberties of the established in a permanent manner, or 
 
 prison upon executing a jail bond to who gives other unmistakable evidence 
 
 the sheriif, hired a house in Woodstock, of his intention to remain there after 
 
 where the jail was located, and moved the expiration of his sentence ; in such 
 
 his family thither. He there supported case would not his domicil be held to be 
 
 his family nine years, and paid taxes dur- changed ? 
 ing those years. Held that he had 
 
 378 
 
§ 276.] DOMICIL OP PEIS0NEB8, EXILES, ETC. [CHAP. XIII. 
 
 authority in tlie affirmative, to believe that such imprison- 
 ment would work a change of domicil. 
 
 § 275. Transported Convict. — With respect to the domicil 
 of a transported convict there appears to have been much 
 doubt in France until the law was recently settled by a stat- 
 ute 1 which provides that, as to those who are condemned to 
 simple transportation, " Leur domicile pour tous les droits 
 civils dont ils ont 1' exercise aux colonies est au lieu ou ils 
 subissent leur peine." On the contrary, convicts who do not 
 enjoy the exercise of their civil rights are, subject to the law 
 of 31st May, 1854, impressed with legal interdiction, and as 
 interdits are domiciled, not in the colony where they are found, 
 but with their tutors.^ In England, Phillimore ^ lays it down 
 as beyond doubt that a person transported for life would lose 
 his original domicil, and Westlake * and Dicey ^ follow him ; 
 the latter, however, with some hesitation, and suggesting that: 
 " Supposing, however, that a sentence to transportation de- 
 stroys a man's domicil of origin, it is probable that no courts, 
 other than those of the sovereign inflicting the sentence, 
 would give this effect to the sentence. French 4migres were 
 treated by our courts as retaining their domicil of origin." 
 
 § 276. The "Helegatua" in the Soman Law. — The Roman 
 law furnishes us with two apparently contradictory texts con- 
 
 1 25th Mar., 1873, but Merlin lays it that the convict shall reside, and make 
 down that d4portSs par jugement a vie his home, in Van Diemen's Land, that is, 
 do not preserve their former domicil, but be domiciled there ; but there seems to 
 gain one in the place to which they are be no English decision on the subject, 
 transported. But it seems to be other- and in the absence of any such decision, 
 wise with regard to political exiles (Mer- doubt may be entertained whether there 
 lin, Repertoire, verb. Dom. § 4, no. 3). be any real distinction between the po- 
 
 2 De Fongaufier, Thfese pour le Doc- sition of a convict and of a prisoner, 
 torat, pp. 147, 148. A person, at any rate, transported for 
 
 ' Dom. no. 151 ; Id. Int. L. vol. ir. years, ought, it would seem, like a pris- 
 
 no. 191. oner, to retain the domicil which he 
 
 * Priv. Int. L. 1st ed. no. 53. possessed at the beginning of his im- 
 
 S Dom. p. 129. He says: "A per- prisonment. Supposing, however, that 
 
 son transported to a particular country a sentence to transportation destroys a 
 
 for life absolutely loses (it is said) man's domicil of origin, it is probable 
 
 his original domicil. It is certainly that no courts other than those of the 
 
 possible that, in this instance, ' the dora- sovereign inflicting the sentence would 
 
 icil of origin may be extinguished by give this eflFect to the sentence. French 
 
 act of law.' A sentence, further, to be imigrh were treated by our courts as 
 
 transported to Van Diemen's Land, may retaining their domicil of origin." 
 probably be looked upon as an order 
 
 379 
 
§ 277.] THE LAW OP DOMICIL. [CHAP. XIII. 
 
 cerning the "relegatus" who was partly exile and partly 
 prisoner. Paulus declares, "Relegatus in eo loco, in quem 
 relegatus est, interim necessarium domicilium habet ; " ^ and 
 Ulpian, "Domicilium autem habere potest et relegatus eo 
 loco, unde arcetur, ut Marcellus scribit."^ Savigny^ har- 
 monizes the texts by holding that the latter means merely 
 that the relegatus is not freed by his punishment from dis- 
 charging his former municipal burdens. But Merlin,* point- 
 ing out that there were two kinds of relegatio, temporary and 
 perpetual, holds that the text of Paulus applies to both kinds, 
 and that of Ulpian only to the latter ; so that one who was 
 condemned to permanent relegation could have domicil only 
 in the place to which he was relegated, while one who was 
 condemned to temporary relegation had a necessary domicil 
 in the place of his punishment, and might at the same time 
 preserve his former domicil, in view of his presumed intention 
 to return after the expiration of the term of his punishment. 
 John Voet ^ also makes the retention of the prior domicil de- 
 pendent upon intention to return, while Corvinus,^ without 
 distinction or qualification, sees in the text only general au- 
 thority for double domicil in the case of a relegatus. 
 
 § 277. Exiles. — In TJdny v. Udny,^ Lord Westbury, in de- 
 veloping the extreme theory maintained in that case of the 
 adhesion of domicil of origin, used this language : " The 
 domicil of origin [and a fortiori an acquired domicil] may 
 be extinguished by act of law ; as, for example, by sentence 
 of death or exile for life, which puts an end to the status civi- 
 lis of the criminal." Whether such effect would be given by 
 foreign courts to such sentence may well be doubted,^ and 
 certainly, if the period of exile be shorter than for life, or be 
 uncertain in its duration, the domicil of the exile would not 
 be held to be changed unless he appears, abandoning all hope 
 
 1 Dig. 50, t. 1, 1. 22. § 3. 2 That the penal laws and judg- 
 
 2 Id. 1. 27, § 3. ments of a country have no extra-tem- 
 » System, etc., § 353, note q (Guth- torial force see Story, Coufl. of L. §§ 91, 
 
 lie's trans, p. 99). 92, and 620 et «e?. ; Wharton, Confl. of 
 
 « Verl. Dom. § 4, no. 3. L. §§ 4, 108 and 833 ; Westlake, Priv. 
 
 5 Ad Pand. 1. 5, t. 1, no. 93. Int. L. 2d ed. §§ 18 and 345; and Dicey, 
 
 » Jur. Rom. 1. 10, t. 39. Dom. p. 162. 
 1 L. B. Sch. App. 441. 
 
 380 
 
§ 278.] DOMICIL OF PRISONERS, EXILES, ETC. [CHAP. XIII. 
 
 and intention to return, to have adopted another domicil.^ 
 Denizart * says : " Thus one may say that an exile is not con- 
 sidered to be domiciled in the place of his exile, and that 
 if he died there, his succession ought not to be regulated 
 by the laws of the country of such residence; because, in 
 order to fix a domicil, it is necessary that there should be a 
 choice manifested by an express intention, and the exile is 
 not allowed that liberty. Hope and intention of return ought 
 always to be presumed in a relSguS, and cbnsequently it may 
 be said that, during his exile, he preserves the domicil which 
 he had at the moment when he was banished. It is necessary 
 to say the same thing of prisoners," etc. 
 
 § 278. Id. — The case of the exile (using that word as we 
 speak, for instance, of an exile to Siberia^) presents two 
 aspects of compulsion ; namely, compulsory absence from one 
 place and compulsory presence in another ; and it is easy to 
 see that the presumption would be very strong against the 
 voluntary adoption of the place of exile as the place of domi- 
 cil. In the case of banishment, or prohibition to remain in a 
 place or country, we have only one aspect of compulsion; that 
 is, compulsory absence, leaving the person free to settle where 
 he pleases. It is apparent that, in the first case, a change of 
 domicil can very rarely take place, or at least be proven, un- 
 less it be held to occur by operation of law. But in the sec- 
 ond case, it is possible to conceive of circumstances which 
 would show that the person had so accepted the situation, 
 and so set himself up in the new place or country, as to raise 
 the presumption that he has no other intention or idea than 
 to remain there permanently. 
 
 * See i»i/ra, § 285. nos. 148-151. But in English and Amer- 
 
 * Verb. Dom. no. 20. ican usage, there seems to be little that 
 1 There is an unfortunate looseness is definite by way of distinction, except 
 
 in the use of the term "exile." The that, in common parlance, "exile" is 
 
 older French writers seem to have em- sometimes applied to voluntary absence, 
 
 ployed it in the sense of one relegated although more frequently to that oc- 
 
 to a particular place, and " banishment" casioned by fear of personal danger, 
 
 with reference to one prohibited from Story apparently uses "banishment" 
 
 remaining in a particular place. See in the sense of exile, as given above j 
 
 Denizart, verb. "Exil," and "Ban," namely, as including confinement at a 
 
 "Banissement." Phillimore uses "ex- particular place (Confl. of L. § 47). 
 ile " in the sense above indicated. Dom. 
 
 381 
 
§ 281.J THE LAW OP DOMICIL. [CHAP. XIII. 
 
 § 279. Refugees. — It is a general rule that a person who 
 is impelled by fear to flee from his place of abode does not 
 thereby lose his domicil, nor does he gain a domicil in the 
 place where he has taken refuge, unless it appear that he has 
 settled there animo manendi ; and the presumption is, until 
 the contrary appears, that such person retains the expectation 
 and intention of returning, when the impelling cause has dis- 
 appeared. Mascardus,^ upon the authority of Ubaldus, says : 
 " Quando quis aliquo metu impulsus, res familiamque suam 
 alibi transtulerit, non enim ibi durante metu domicilium con- 
 traxisse prsesumitur." This principle has been applied to 
 several classes of refugees.^ 
 
 § 280. Political Refugees. — The most familiar class is that 
 of the political refugee. A striking instance of this class is 
 given by Boullenois,i in the case of the fugitives who accom- 
 panied James II. to France, and who were treated by the 
 French jurists as retaining their English domicil. And on 
 the other hand, the same doctrine was recognized by the Eng- 
 lish courts in the case of the French emigrants or refugees 
 during the period of the French Revolution, and since.^ 
 
 § 281. De Bonneval v. De Bonneval. — The leading case is 
 that of De Bonneval v. De Bonneval, in which Sir Herbert 
 Jenner, J., delivered an opinion which has been much referred 
 to. He says : " There is no doubt that the domicil of origin 
 of the deceased was France, for there he was born and con- 
 tinued to reside from 1765 to 1792, and he left that country 
 only in consequence of the disturbances which broke out there. 
 He came here in 1793, but he came in the character of a 
 Frenchman, and retained that character till he left this coun- 
 try in 1814 ; for he received an allowance from our government 
 as a French emigrant. Coming with no intention of residing 
 
 ^ De Probationibus, concl. 535, no. i Traits de la R&lit4 et Personality 
 
 26- des Statuts, tome 1, t. 2, c. 3 ; and to 
 
 2 See Philllmore, Dom. no. 152 et the same effect see Denizart, verb. An- 
 
 seg-. ; Westlake, Priv. Int. L. 1st ed. no. glois, no. 1. 
 
 38, 2d ed. § 262 ; Dicey, Dom. pp. 130, « De Bonneval -o. De Bonneval, 1 Cui- 
 
 131 ; Wharton, Confl. of L. § 54 ; and teis, 856 ; Goods of Duchess d'OrUans, 
 
 authorities cited in the remaining notes 1 Swab. & Tr. 253. In the latter case 
 
 of this chapter. As to fugitive from jus- there was a decree of banishment by 
 
 tice, see Barrett v. Black, 25 Ga. 151. the French Eepublic. 
 382 
 
§ 282.] DOMICIL OF PRISONERS, EXILES, ETC. [CHAP. XIII. 
 
 here, did anything occur while he was resident hei'e to indi- 
 cate a contrary intention ? It is clear to me that, as in the 
 case of exile, the absence of a person from his own country 
 will not operate as a change of domicil ; so, where a 'party re- 
 moves to another country to avoid the inconveniences attend- 
 ing a residence in his own, he does not intend to abandon his 
 original domicil, or to acquire a new one in the country to 
 which he comes to avoid such inconveniences. At all events, 
 it must be considered a compulsory residence in this country ; 
 he was forced to leave his own, and was prevented from re- 
 turning till 1814. Had his residence here been, in the first 
 instance, voluntary ; had he come here to take up a permanent 
 abode in this country, and to abandon his domicil of origin, 
 that is, to disunite himself from his native country, the result 
 might have been different. It is true that he made a long 
 and continued residence in this country, but I am of opinion 
 that a continued residence in this country is not sufficient to 
 produce a change of domicil ; for he came here avowedly as 
 an emigrant, with an intention of returning to his own country 
 so soon as the causes ceased to operate which had driven him 
 from his native home. He remained a Frenchman, and if he 
 had died during the interval between 1793 and 1815, his prop- 
 erty would have been administered according to the law of 
 France." 
 
 § 282. White V. Brown. — In the American case of White 
 V. Brown,^ this doctrine was expounded by Grier, J., in his 
 charge to the jury. It appeared in evidence that the testator, 
 being a Pennsylvanian by birth, had, during the Revolution, 
 adhered to the King of Great Britain, and in 1776, having 
 sold part of his real estate in this country, had sailed for 
 England. In 1781 he was proclaimed a traitor, and his real 
 estate was confiscated. In 1788 he received compensation 
 from Great Britain as a suffering loyalist. A greater part of 
 his time from the close of the war, to his death in 1824, was 
 spent in England ; he returned, however, to this country sev- 
 eral times after the close of the war, remaining in all about 
 two years. It appeared also that he had used very strong 
 
 1 1 WaU. Jr. C. Ct. 217, 265. 
 
§ 284.J THE LAW OF DOMICIL. [CHAP, XIII. 
 
 expressions indicating a desire and intention to return to, and 
 remain in, America. In view of these facts the learned judge 
 charged the jury as follows : " A fugitive from his country on 
 account of civil war still retains his domicil, unless he shows 
 an intention of a total abandonment of his country by the 
 acquisition of a new domicil of choice. Nor will the confisca- 
 tion of his property by the new government, in the case of a 
 revolution effected after civil conflict, nor the attainder of his 
 person, of themselves put an end to his domicil of origin. If 
 he elect to adhere to the old sovereign or government, look- 
 ing forward with hopes of its re-establishment, his domicil of 
 origin is not necessarily abandoned by such election. Alle- 
 giance to the existing government, or the exercise of political ' 
 rights, constitute no part of the definition of domicil. These 
 facts may nevertheless be of great importance in judging of the 
 intention. Consequently, adherence to the King of Great Brit- 
 ain in our Revolutionary War, although it might have caused 
 the forfeiture of the life or property of an American citizen, 
 was not of itself an abandonment of his domicil. The estates 
 of those persons who fled from England with the Stuarts, and 
 died in Prance, were administered by the French courts ac- 
 cording to the law of England as their domicil." The jury 
 found in favor of the American domicil, and, on the motion 
 for a new trial, the court sustained their finding. 
 
 § 283. Ennis v. Smith. — The general doctrine was also rec- 
 ognized by the Supreme Court of the United States in Ennis 
 V. Smith 1 (Kosciusko's case) ; but we may draw from that 
 case the doctrine that voluntary exile because of unwilling- 
 ness to live under a particular government does not pre- 
 vent a change of domicil, even though the hope be entertained 
 of a change of government such as will permit a return 
 without violence to the feelings of the person so circum- 
 stanced. 
 
 § 284. Fugitives from the Horrors and Dangers of Vrar. — The 
 general rule has also been applied to persons who have fled to 
 
 1 14 How. 400. In Hardy v. De contrary to his will, and that he con- 
 
 Leon, 6 Tex. 211, the facts were that stantly retained an intention to return. 
 
 De Leon was removed by the military Held that his domicil was not changed. 
 
 authorities of that State to Louisiana, See also White v. Burnley, 20 How. 235. 
 
 384 
 
§ 286.J DOMICIL OF PRISONERS, EXILES, ETC. [CHAP. XIII. 
 
 avoid the horrors and dangers of war, particularly civil war.^ 
 The passage above quoted from Mascardus has reference to 
 such case. 
 
 This doctrine has been applied also to municipal domicil in 
 this country .2 
 
 § 285. XizUe or Fugitive may acquire Domicil at the Place V7here 
 he takes Refuge. — It is scarcely necessary to cite authority that 
 an exile or fugitive may acquire domicil at the place where 
 he takes refuge, if he sees fit to do so, and that he may be 
 assumed to do so if he continues settled there in a permanent 
 manner after his restoration to his own home has become 
 possible.^ 
 
 § 286. Absconding Debtors. — In Udny V. Udny,i Lord West- 
 bury said, speaking of domicil of choice : " There must be a 
 residence freely chosen, and not prescribed or dictated by any 
 external necessity, such as the duties of office, the demands 
 of creditors, or the relief from illness." In that case, how- 
 ever, the English acquired domicil which Colonel Udny left 
 on account of pecuniary embarrassments was held to have 
 been completely and finally abandoned and lost ; and Lord 
 Chancellor Hatherley seemed to consider it a circumstance in 
 favor of such abandonment that his return to England " was 
 barred against him by the continued threats of process by his 
 creditors." Here there was evidently no animus revertendi ; 
 but in several other cases of similar absence it has been held 
 that no change of domicil takes place if there is animus re- 
 vertendi. Thus in Pitt v. Pitt,^ in the House of Lords, all the 
 facts tended to show the intention of Colonel Pitt to return, if, 
 and whenever, he could get rid of his liabilities. In Briggs v. 
 Briggs,^ Hannen, President, held that absence to avoid cred- 
 
 1 Baptiste v. De Volunbran, 5 Harr. but a mere sojourner. In De Fontaine 
 
 & J. 86 ; De Fontaine v. De Fontaine, -o. De Fontaine the facts were similar, 
 
 id. 99 note. The defendant in the for- and the result the same, 
 mer case was driven from St. Domingo ^ Polger v. Slaughter, 19 La. An. 
 
 hy the servile war, and took refuge in 323. 
 
 Baltimore, intending to return to her i Djoey, p. 131 ; Wharton, § 54 ; Po- 
 
 own country as soon as she could do so thier, Intr. aux Cent. d'OrUans, no. 15. 
 with safety. Held that she was not i L. K. 1 Sch. App. 441 ; and supra, 
 
 "resident" in Maryland within the §195. 
 provisions of the law prohibiting the ^ 4 Macq. H. L. 627. 
 impoi'tation of slaves into that State, ' L. E. 5 P. D. 163. 
 
 25 385 
 
§ 286.] THE LAW OF DOMICIL. [CHAP. XIII. 
 
 itors worked no change of domicil where there was an animus 
 revertendi in case the party could make enough money to pay 
 off his debts. And to the same effect was the Virginia case 
 of Lindsay v. Murphy.* In Jennison v. Hapgood,^ the testator, 
 domiciled in Massachusetts, left that State to avoid his credit- 
 ors. But he did not remove with him his family, who continued 
 to reside where he had left them ; and upon this " important 
 fact " the court based the presumption of animus revertendi, 
 and held that his domicil was not changed. In all these cases 
 in which a change has been decided against, it appears to have 
 been upon the ground of express or presumed animus re- 
 vertendi, and hence that the new residence was more or less 
 temporary, while Udny v. Udny itself seems to be a refutation, 
 or at least a contradiction, of the doctrine of Lord Westbury. 
 
 * 76 Va. 428. Sharpe v. Orde, 8 S. (Sc. Sess. Cas. 1st 
 5 10 Pick. 77. Besides the authori- ser. 1829) 49, and Eunmey v. Camp- 
 ties cited mpra, see on this subject town, 10 N. H. 567. 
 386 
 
§ 289.] DOMICIL OF INVALIDS. [CHAP. XIV. 
 
 CHAPTER XIV. 
 
 DOMICIL OP PARTICULAR PERSONS (^continued'), — INVALIDS. 
 
 § 287. Reference has already been made to the " health 
 cases," that is, those involving or discussing the domicil of in- 
 valids. They are not numerous, nor can it be said that the 
 actual results reached in any of them are justly open to criti- 
 cism; but they have given some difficulty by reason of the 
 apparently conflicting expressions of opinion used by judges 
 who took part in their discussion and decision. It will be 
 well to look at the most important of them in detail. 
 
 § 288. Iiord Campbell, in Johnstone v. Seattle. — About the 
 earliest discussion of the subject of the domicil of an invalid 
 was by Lord Campbell, in Johnstone v. Beattie,^ where he used 
 this language : " It must be remembered . . . that she came 
 to England only on account of her health, and her child's. 
 ... I see no reason to think that in case she should re-- 
 cover her health . . . she had permanently adopted England 
 as her place of residence, although her father resided at Ches- 
 ter. She undoubtedly expected to die in England, and she 
 gave directions that her body should be buried in England ; 
 but this was in her last sickness, of the fatal termination 
 of which she had a foreboding. The question is, whether she 
 had taken up her permanent residence in England in case 
 she should recover her health and strength ? If, instead of 
 remaining in Albion Street, Hyde Park, she had gone for her 
 health to the Island of Madeira, where her husband died, and 
 had written letters stating that she should die there, and had 
 given directions that she should be buried there, although she 
 had died and been buried there, unquestionably her Scotch 
 domicil would never have been superseded." 
 
 § 289. Lord Kingadown, in Moorhouse v. Lord. — The Case 
 
 supposed by Lord Kingsdown, in Moorhouse v. Lord,^ is quite 
 
 I 10 CI. & Fin. 42, 138. i 10 H. L. Cas. 272, 292. 
 
 387 
 
§ 291.] THE LAW OP DOMICIL. [CHAP. XIT. 
 
 similar : " I can well imagine a case in which a man leaves 
 England with no intention whatever of returning, and not only 
 with no intention of returning, hut with a determination and 
 certainty that he will not return. Take the case of a man 
 laboring under a mortal disease. He is informed by his 
 physicians that his life may be prolonged for a few months by 
 a change to a warmer climate — that at all events his suffering 
 will be mitigated by such change. Is it to be said that if he 
 goes out to Madeira he cannot do that without losing his 
 character of an English subject, without losing the right to 
 the intervention of the English laws as to the transmission of 
 his property after his death, and the construction of his testa- 
 mentary instruments? My Lords, I apprehend that such a 
 proposition is revolting to common sense and the common 
 feelings of humanity." 
 
 § 290. Sir John Dodson, in Laneuville v. Anderson. — Sir 
 John Dodson, in Laneuville v. Anderson,^ puts the opposite 
 phase of the subject : " It is said that the mere going for 
 health, or the mere going for purposes of that sort, — for a 
 better climate, — cannot have the effect of fixing his domicil ; 
 for if persons go to places merely for the benefit of their 
 health, for a temporary purpose, — such as going to watering- 
 places, — going to Cheltenham or Bath or the Continent, — 
 that does not effect a change of domicil. But where a man 
 fixes his home on account of its being more beneficial to his 
 health, that is as good a motive, that will have as much effect, 
 I apprehend, as any other cause for being desirous of re- 
 maining in the same place." 
 
 § 291. Hoskins v. Matthews. — In the case of Hoskins V. 
 Matthews,^ the testator, M., a born Englishman, having passed 
 middle age and being in ill health, left England in 1838, under 
 the advice of physicians, and, after travelling for some time 
 on the Continent, and visiting various watering-places, finally 
 located in Tuscany, where, principally on account of the suit- 
 ableness of the climate, in 1839 he purchased a villa and set 
 up an establishment. His declarations as to his intention of 
 permanent or temporary residence were somewhat conflicting ; 
 
 1 2 Spinks, 41. i 8 De Q. M. & G. 13, 28. 
 
 388 
 
§ 291. J DOMICIL OP INVALIDS. [CHAP. XIV. 
 
 but he purchased at different times additional land to be used 
 in connection with his villa, in which he continued to reside 
 uninterruptedly, — except during annual visits to watering 
 places, — up to the time of his death in 1850. In his will he 
 provided for the residence of his favorite son and his daughters 
 in his villa after his death. Upon these and other facts 
 Wood, V. C, held his domicil to be Tuscan, and on appeal his 
 decree was affirmed by a division of the Court of Appeal, 
 composed of Turner and Knight-Bruce, L. JJ. The former, 
 agreeing with the conclusion of the Vice-Chancellor said : " It 
 was contended on the part of the appellant — and this was the 
 great staple of the argument on his part — that Mr. Matthews's 
 residence out of England was a matter of necessity, and not of 
 choice ; that his health compelled him to reside abroad, and 
 that domicil cannot be founded on such compulsory residence. 
 That there may be cases in which even a permanent residence 
 in a foreign country occasioned by the state of the health may 
 not operate a change of domicil, may well be admitted. Such 
 was the case put by Lord Campbell, in Beattie v. Johnstone. 
 But such cases must hot be confounded with others, in which 
 the foreign residence may be determined by the preference of 
 climate, or the hope or the opinion that the air or the habits 
 of another country may be better suited to the health or the 
 constitution. In the one case the foreign abode is determined 
 by necessity ; in the other it is decided by choice. In this 
 case I find nothing in the evidence to show that Mr. Ma;tthews, 
 when he left England, was in any immediate danger or appre- 
 hension. He was no doubt out of health, and he went abroad 
 for the purpose of trying the effect of other remedies and other 
 climates. That he would have preferred settling in England 
 I have little doubt ; but I think he was not driven to settle in 
 Italy by any cogent necessity. I think that, in settling there, 
 he was exercising a preference, and not acting upon a neces- 
 sity ; and I cannot venture to hold that in such a case the 
 domicil cannot be changed. If domicil is to remain unchanged 
 upon the ground of climate being more suitable to health, I 
 hardly know how we could stop short of holding that it ought 
 to remain unchanged also upon the ground of habits being 
 more suitable to fortune. There is in both cases a degree of 
 
 389 
 
§ 292.] THE LAW OP DOMICIL. [CHAP. XIT. 
 
 moral compulsion." Lord Justice Knight-Bruce did not dis- 
 cuss the ground of his dissent. 
 
 § 292. Hegeman v. Pox. — The subject was discussed by the 
 Supreme Court of New York, in the case of Hegeman v. Fox.^ 
 The facts were that M., whose domicil of origin was in Mas- 
 sachusetts, went to New York City and engaged in business 
 there, and after having accumulated considerable property, 
 he went to reside in Williamsburgh, in the same State ; but 
 subsequently falling into ill health, he went to Florida, where 
 he purchased a plantation, set up a household establishment, 
 and in various ways manifested an intention of permanent 
 residence, which, but for the question of health, would have 
 been undoubtedly sufficient to establish a change of domicil. 
 Emott, J., speaking for the court, said: " It is said that all the 
 acts and manifestations of purpose which are proved in the 
 case are deprived of their effect, and that whatever the testa- 
 tor did could not legally produce a change of his domicil, be- 
 cause these acts were done under the stress of impaired health, 
 and the change which he made was compelled by that reason. 
 It may be conceded that Mr. Moore broke up his establish- 
 ment in Williamsburgh in consequence of his enfeebled health, 
 and went South in order to its restoration, or rather to the 
 prolongation of his life in a milder climate, and that if it had 
 not been for this, he would never have left this State. It is 
 said that absence from an established domicil will not effect 
 its loss if such absence be compulsory, and that it is compul- 
 sory if occasioned by ill health. The case of the invalid is 
 likened to that of the exile, the soldier, or the ambassador. 
 To a certain extent these propositions are undeniably true. 
 Mere absence, when compelled by the urgency of sickness 
 that will admit of no delay to avert an immediate fatal ter- 
 mination, cannot take away a man's residence in the home 
 which he leaves, or fix it in the place to which he goes. A 
 man who flies from the rapid approach of death has no other 
 motive, and does not exercise the choice which is necessary 
 in a change of his home and permanent abode. But the 
 whole matter is a question of intention, and no arbitrary rule 
 
 1 31 Barb. 475. 
 
 390 
 
§ 292.] BOMICIL OP INVALIDS. [CHAP. XIT. 
 
 is to be laid down in relation to it. . . . Mr. Moore, when he 
 left New York, was not in any immediate danger, ... or at 
 least, which is the material point, did not suppose he was. 
 He was not like a man fleeing a pestilence, or an attack of 
 disease threatening instant death, and therefore leaving no 
 space for choice, and no motive but necessity. It is alto- 
 gether going too far . . . to say that ill health, the necessity 
 of finding a milder or a better climate, to live comfortably or 
 to live at all, is not to be admitted as a motive for a change 
 of residence. Such circumstance may create a sort of neces- 
 sity, but it is a moral necessity acting upon the will. And 
 whenever there is an act of volition, a determination to aban- 
 don the old home and make a new one, it is not material what 
 motives have induced the choice. Undoubtedly there may be 
 cases in which even a permanent residence in a foreign coun- 
 try, occasioned by the state of the health, may not operate a 
 change of domicil. But in these questions every case must 
 stand upon its own circumstances. The cases in which the 
 residence of an invalid in a foreign country, or even in a dis- 
 tant portion of his own country, will not create a domicil, 
 may be understood by comparing them with the case of the 
 exile, or, as the text-writers denominate him, " the emigrant," 
 which they more nearly resemble. The fugitive from revo- 
 lution or civil war comes to his new abode with no inten- 
 tion of abandoning his country, or of permanently remaining 
 abroad. He is coerced by causes which approach to, if they 
 do not constitute, actual physical compulsion, and his mani- 
 fest purpose is only to remain in his new abode as long as 
 these causes operate, and when the necessity for absence is 
 removed, to return. There may be cases of instant fear of 
 death by sickness which resemble this ; but where a man 
 deliberately breaks up his residence, purchases a new man- 
 sion, engages in new occupations, and acts in every respect as 
 a man would who was settling himself altogether from choice 
 and free will, he must be acting under the control of motives 
 and not of necessity, and he looks forward to no return. He 
 goes to another region to obtain that health which he is con- 
 vinced he cannot enjoy where he is, and he is much more like 
 the man who changes his abode in quest of fortune, that he 
 
 391 
 
§ 294.1 THE LAW OP DOMICIL. [CHAP. XIV, 
 
 may gain a living or a competence which he sees he cannot 
 get at his present home. If there be satisfactory evidence in 
 the case, as we all think there is, of Mr. Moore's intention to 
 break up his residence in King's County, and subsequently to 
 make Florida his home, we think the force of this evidence is 
 not destroyed by the fact that he was driven to the step, by 
 what he considered the necessity of preserving his health or 
 his life. We might as well hesitate to say that he lost his 
 domicil of origin -when he removed from Massachusetts to 
 New York, doubtless under the belief that he must do so in 
 order to earn the fortune which he sought, or perhaps the 
 very means of living." The court accordingly held that 
 domicil had been changed. 
 
 § 293. Isham V. Gibbons. — In another New York case,^ 
 the testator was a native of Georgia, but had become domi- 
 ciled in New Jersey. Falling into ill health, he went to New 
 York City for medical treatment and to secure the daily at- 
 tendance of an eminent physician. He there hired a house, 
 and partly furnished it ; but, although describing himself in 
 deeds as of New York City, and paying personal taxes there 
 under protest, he constantly declared his intention to return 
 to New Jersey in event of his recovery, and, in the mean time, 
 kept up his establishment there. He died in New York after 
 a residence of two years. The Surrogate held his domicil to 
 be in New Jersey, remarking : " There is a clear distinction 
 between the surrender of a hope of ever being able to return 
 to your home, and the absolute abandonment of your home. 
 Many an invalid leaves his bones upon a foreign soil, who, 
 after a long absence from home, has given up the prospect of 
 a return, and yet who has not taken the first step towards the 
 surrender of his domicil." 
 
 § 294. Dupuy V. TWurtz. — Somewhat similar to this was 
 the case of Dupuy v. Wurtz,i in the New York Court of Ap- 
 peals. The testatrix and her husband being domiciled iu 
 New York, in 1859 went to Europe for their health, expecting 
 ultimately to return. In 1861 her husband died in Rome, 
 and thereafter the testatrix continued abroad, spending her 
 
 I Isham V. Gibbons, 1 Bradf. 69. i 53 N. Y. 556. 
 
 392 
 
§ 295.] DOMICIL OP INVALIDS. [CHAP. XIT. 
 
 time ill various places in Europe, though apparently the most 
 of it at Nice, until her death in 1871. During the greater 
 part of this period she did not look upon her absence as per- 
 manent, and kept her house in New York City unoccupied, 
 ready for her return ; but in 1868 she rented her house, and 
 in view of the advice of her physicians that her health would 
 not permit her to make the voyage home, she finally sur- 
 rendered all hope of return and made up her mind to live 
 and die abroad. The court held her domicil to be unchanged, 
 but put the decision mainly upon the ground that there was 
 not sufficient evidence of intention to settle permanently in 
 any particular place, quoting, however, with approbation, the 
 remarks (already given) of Lord Kingsdown, in Moorhouse 
 V. Lord. 
 
 § 295. still V. Woodville. — Similar also was a case ^ in the 
 Supreme Court of Mississippi. The facts were that the tes- 
 tator, a native of Mississippi and domiciled there, being in ill 
 health, sold his plantation and slaves and left. the State. He 
 went to Bayou Sara, in Louisiana, where he remained several 
 months, and thence to New Orleans, remaining there for a 
 month or two in the house of a friend and under the care of 
 a physician. Thence he went to Texas, and there he died a 
 few weeks after his arrival. In his will, made at New Orleans, 
 he described himself as of W. County, Mississippi. He ap- 
 pointed his executor there, and directed that his estate should 
 be sent there along with his will. It is true that he made 
 some declarations of his purpose never to return to that State, 
 even in the event of his recovery, but (in the language of the 
 court) " the whole scope of the evidence showed that his health 
 induced him to abandon his business and home in W. County, 
 not with a view to a permanent abode elsewhere, but only to re- 
 gain his health and prolong his life by travel." It was accord- 
 ingly held that his domicil was not changed. It is, indeed, 
 plain, on general principles and wholly without authority, that 
 one who is temporarily absent for the sake of his health, and 
 who intends to return ^ to his former place of abode, or who, 
 
 1 Still ■». "Woodville, 38 Miss. 646. ford v. Wilson, 4 Barb. 504; Rue High, 
 
 2 The following, however, may be Appellant, 2 Doug. (Mich.) 515 ; Kel- 
 cited : Story, Confl. of L. § 45 ; Craw- logg v. Oshkosh, 14 Wis. 625. 
 
 393 
 
§ 296.J 
 
 THE LAW OF DOMICIL. 
 
 [chap. XIV. 
 
 being permanently absent, does not permanently fix himself 
 elsewhere, does not lose his domicil.^ 
 
 § 296. Lord Westbury, in Udny v. Udny. — Of all the ex- 
 pressions upon this subject, that of Lord Westbury, in Udny v. 
 Udny,^ is most liable to misconception. In speaking of dom- 
 
 8 Dupuy V. Wurtz, supra j Still v. 
 Woodville, supra. 
 
 1 L. R. 1 Sch. App. 441. Dicey, Dom. 
 p. 134, after noticing the English author- 
 ities, thus remarks : "The apparent in- 
 consistency between these doctrines may 
 he removed, or explained, if we dismiss 
 all reference to motive, to external ne- 
 cessity, and so forth ; avoid the use of 
 the. misleading terms ' voluntaiy ' and 
 ' involuntary," and recurring to the 
 principle that residence, combined with 
 the purpose of permanent or indefinite 
 residence, constitutes domicil, apply it 
 to the different cases or circumstances 
 under which a domiciled Englishman 
 may take up a foreign residence for the 
 sake of his health. These cases are 
 three : First case : D. goes to France 
 for relief from sickness, with the fixed 
 intention of residing there for six months 
 and no longer. This case presents no 
 difficulty whatever. D. does not ac- 
 quire a French domicil, any more than 
 he does if he goes to France for six 
 months on business or for pleasure. 
 The reason why he does not acquii-e 
 a domicil is that he has not the animus 
 manendi, but the quite different inten- 
 tion of staying for a determinate time 
 or definite purpose. Second case : D., 
 finding that his health suffers from the 
 English climate, goes to France and 
 settles there ; that is, he intends to re- 
 side there permanently or indefinitely. 
 D. in this case acquires a French domi- 
 cil. Here, again, there is no deviation 
 from general principle. D. acquires a 
 French domicil because he resides in 
 France with the animus manendi. 
 Third case : D. goes to France in 
 a dying state, in order to alleviate his 
 sufferings, without any expectation of 
 returning to England. This is the case 
 which has .suggested the doctrine that 
 a change of residence for the sake of 
 
 394 
 
 health does not involve a change of 
 domicil. The doctrine itself, as applied 
 to this case, conforms to common sense. 
 It would be absurd to say that D., who 
 goes to Pau, to spend there in peace the 
 few remaining months of his life, acquires 
 a French domicil. But the doctrine in 
 question, as applied to this case, is in 
 conformity, not only with common sense, 
 but with the general theory of the law 
 of domicil. D. does not acquire a dom- 
 icil in France, because he does not go to 
 France with the intention of permanent 
 or indefinite residence, in the sense in 
 which these words are applied to a per- 
 son settling in another country, but 
 goes there for the definite and deter- 
 minate purpose of passing in France 
 the few remaining months of his life. 
 The third' case, now under considera- 
 tion, is, in its essential features, like 
 the first, and not like the second, of the 
 cases already examined. If D. knew 
 for certain that he would die on the 
 day six months after he left England, 
 it would be apparent that the first and 
 third eases were identical. That the 
 definite period for which he intends to 
 reside is limited, not by a fixed day, or 
 by the conclusion of a definite piece of 
 business, but by the expected termina- 
 tion of his life, can make no difference 
 in the character of the residence. In 
 neither the first nor the third case 
 is the residence combined with the 
 proper animus manendi. In no one of 
 the three cases we have examined is 
 there any necessity, in order to arrive 
 at a right conclusion, for reference to 
 the motive, as contrasted with, what is 
 quite a different thing, the purpose or 
 intention of residence. We may now 
 see that the contradictory dicta as to 
 the effect of a residence for the sake 
 of health do not of necessity imply 
 any fundamental difference of opinion 
 
§ 296.] 
 
 DOMICIL OP INVALIDS. 
 
 [chap. XIV. 
 
 icLl of choice, he says : " There must be a residence freely 
 chosen, and not prescribed or dictated by any external neces- 
 sity, such as the duties of office, the demands of creditors, or 
 the relief from illness." His lordship, however, probably had 
 in view the extreme cases, such as those supposed by Lord 
 Campbell in Johnstone v. Beattie, and Lord Kingsdown in 
 Moorhouse v. Lord, and not such cases as Hoskins v. Mat- 
 thews and Hegeman v. Fox. 
 
 among the high authorities by whom 
 these dicta were delivered. All these 
 authorities might probably have arrived 
 at the same conclusion if they had had 
 the same circumstances before their 
 minds. The court which gave judg- 
 ment in Hoskins u. Matthews had to 
 deal with the second of our supposed 
 cases, and arrived at what, both ac- 
 cording to common sense and accord- 
 ing to theory, is a perfectly sound 
 conclusion. The dicta, on the other 
 hand, of the authorities who lay down 
 that a residence adopted for the sake of 
 health does not involve a change of dom- 
 icil, are obviously delivered by persons 
 
 who had before their minds the third, 
 not the second, of our supposed cases. 
 These dida, again, embody what, in 
 reference to such a case, is, as we have 
 shown, a perfectly sound conclusion. 
 Their only defect is, that they are ex- 
 pressed in terms which are too wide, 
 and which therefore cover circumstances, 
 probably not within the contemplation 
 of the authorities by whom they were 
 delivered ; and, further, that, while 
 embodying a sound conclusion, they 
 introduce an unnecessary and misguid- 
 ing reference to the motives which 
 may lead to the adoption of a foreign 
 domicil." 
 
 395 
 
297.] THE LAW OF DOMICIL. [CHAP. XV. 
 
 CHAPTER XV. 
 
 DOMICIL OF PARTICULAR PERSONS {continued), — SOLDIERS AND 
 
 SAILORS.' 
 
 (a) Soldiers and Sailors in, the War Marine, 
 
 § 297. Roman Law. — In the Roman law a soldier was con- 
 sidered as domiciled at the place where he served, unless he 
 possessed property in the place where he held citizenship. 
 " Miles ibi domicilium habere videtur ubi meret, si nihil in 
 patria possideat." ^ Donellus,^ in citing this passage, adds by 
 way of explanation, " Quasi animo ad eum locum adjecto, in 
 quo ad militandum cpnsistere, et stipendium accipere cogitur." 
 
 § 298. French Jurists. — Such, however, is not the modern 
 view. The French jurists, with few exceptions, hold that a 
 soldier preserves his domicil of origin until he has manifested a 
 contrary intention.^ Demolombe, holding that the residence of 
 a soldier in a garrison does not give him domicil there, classes 
 it among " pure residences ad tempus, which are far from ex- 
 cluding the hope of return, and which, besides, not having 
 the effect of the choice and will of the persons, are not able 
 to furnish proof of intention to change domicil." A soldier 
 may, however, it has been held,^ establish his domicil where he 
 is stationed in a garrison by the regular formal acts for which 
 the French law makes provision, and when he has done so he 
 preserves that domicil notwithstanding he becomes stationed 
 
 1 Dig. 50, t. 1, 1. 23, § 1. cad5, Cours de Code Civil, art. 108, no. 
 
 " De Jure Civili, 1. 17, c. 12, p. 2; Boncenne, Procedure Civile, p. 204; 
 
 978 b, no. 70. See also J. Voet, Ad Proudhon, Traite de I'Etat des Per- 
 
 Pand. 1. 5, t. 1, no. 93 ; Corvinus, Jur. sonnes, t. 1, p. 249, and others cited, 
 
 Eom. 1. 10, t. 39, p. 46 ; Savigny, Sys- Sirey et Gilbert, Code Civil Annote, art. 
 
 tern, etc. § 363 (Guthrie's trans, p. 99). 102, note 8. 
 
 1 Demolombe, Cours de Code Napo- 2 g^e Sirey et Gilbert, Code Civil 
 
 Uon, t. 1, no. 354 ; Duranton, Cours Annote, art. 102, note 11. 
 de Droit Fran9ais, t. 1, no. 360 ; Mar- 
 
 396 
 
§ 299.] 
 
 DOMICIL OP SOLDIERS AND SAILOES. [CHAP. XT. 
 
 elsewhere, so long as the indication of another domicil does 
 not result from a subsequent formal act. 
 
 § 299. Does a Soldier necessarily become domiciled within the 
 Territory of the Sovereign whom he serves ? — It has been held 
 in Englandji by a confusion of the ideas of domicil and alle- 
 
 1 President of United States v. Drum- 
 mond, 33 Beav. 449. In that case Lord 
 Romilly, M. R., said : " He obtained 
 a commission in the English army, which 
 would give him an English domicil." 
 Tending in the same direction was the 
 language of Lord Justice Turner in 
 Jopp V. Wood, 4 De G. J. & S. 616. 
 He said : "In the course of the argu- 
 ment on the part of the appellant, re- 
 Uanoe was placed on the cases which 
 have been decided as to covenanted ser- 
 vants of the East India Company. But 
 there are considerations connected with 
 that class of cases which have no bear- 
 ing on a case Uke the present. At the 
 time when those cases were decided, the 
 Government of the East India Company 
 was in a great degree, if not wholly, a 
 separate and independent government, 
 foreign to the government of this coun- 
 try ; and it may well have been thought 
 that persons who had contracted obliga- 
 tions with such government for service 
 abroad could not reasonably be con- 
 sidered to have intended to retain their 
 domicil here. They in fact became as 
 much estranged from this country as if 
 they had become servants of a foreign 
 government." Formerly, Sir Charles 
 Douglas's case was considered as directly 
 establishing the doctrine referred to in 
 the text. Phillimore, in his work on 
 Domicil (no. 119), so understood it ; but 
 in this he has fallen into an error by 
 relying too closely upon the statement 
 of that case contained in the argument 
 of plaintiff's counsel in Somerville v. 
 Somerville, 5 Ves. Jr. 750, 757 et seq. 
 Indeed, he quotes as a part of the lan- 
 guage of the Lord Chancellor in Om- 
 manney v, Bingham, what upon ex- 
 amination plainly appears to be only 
 the statement of the inferences which 
 they draw from that case. Ii) his later 
 work (Int. L. vol. iv. no. 159) he prop- 
 
 erly attributes the language quoted to 
 counsel, but considers the position taken 
 by them (in accordance with the state- 
 ment above in the text) to be a coiTeot 
 exposition of the law. It is somewhat 
 singular that Dr. Lushington, in Hodg- 
 son V. DeBeauchesne (12 Moore P. C. C. 
 285, 317), falls into the same error in 
 attributing the language mentioned to 
 the Lord Chancellor in Ommanney v. 
 Bingham, instead of to counsel in 
 Somerville v. Somerville. Mr. Robert- 
 son, however, in the appendix to his 
 valuable work on Personal Succession, 
 prints in full the judgment of Lord 
 Loughborough, in Ommanney v. Bing- 
 ham, from a note which was understood 
 to have been furnished by his lordship 
 himself to the parties. By this report 
 it appears that no such point was held 
 in that case, but that on the contrary 
 the following language was used by the 
 Lord Chancellor : "In viewing the life 
 of the late Sir Charles Douglas, your 
 lordships will find it a life of bustle 
 and adventure. The scenes of activity 
 in which he was almost constantly en- 
 gaged, and in the course of which he 
 distinguished himself so remarkably for 
 courage and good conduct, afforded him 
 but little opportunity to settle long in 
 any particular place. Independent of 
 the services he rendered to this country, 
 your lordships will find him in the 
 employment of two Courts, the allies 
 of Britain ; viz., Holland and Russia. 
 In the Empress's service he was en- 
 trusted with a very high command, 
 which did not continue, however, for 
 any gi'cat length of time ; but in the 
 service of Holland he continued for 
 a much longer period, — three or four 
 years, — and it has been argued that he 
 acquired a domicil in each of these 
 countries, a question which I am not 
 now called upon to discuss." West- 
 
 397 
 
§ 300.] 
 
 THE LAW OP DOMICIL. 
 
 [chap. XV. 
 
 giance, that a person who enters the military or naval service 
 of a foreign sovereign thereby acquires a domicil within the 
 territories of that sovereign. It is upon this ground that the 
 anomalous cases of involving the domicil of the servants of 
 the East India Company have been explained.^ 
 
 In this country, in an Alabama case ^ involving liability for 
 military service in the Confederate army (which was put upon 
 the ground of domicil), it was held that the presumption of 
 domicil arising from unexplained residence is greatly strength- 
 ened by enlistment in the military service of the government ; 
 Walker, C. J., remarking, " A temporary military service may 
 not be conclusive evidence of domicil, but it is certainly a 
 fact powerfully contributing to establish the domicil." 
 
 § 300. Id. — And this seems a much more reasonable doc- 
 trine than that apparently adopted in Great Britain, inasmuch 
 
 lake, in his first edition (Priv. Int. L. 
 no. 44, p. 43), says : " By entering the 
 permanent military service of any govern- 
 ment, a domicil in the territory of that 
 government is acquired, and is retained 
 notwithstanding a cantonment at a for- 
 eign station ; for such cantonment is 
 subject throughout to the contingency 
 of abrupt termination, and the only 
 lasting attachment is to the employing 
 country. The same is true of a naval 
 service, when the officer has his dwell- 
 ing on shore in the territory of the 
 government he serves ; and, on prin- 
 ciple, perhaps even without that cir- 
 cumstance, as the ships of a nation are 
 equivalent to its soil. But if the em- 
 ploying nation include several jurisdic- 
 tions, the native subject who enters its 
 military or naval service retains, in gen- 
 eral, the character of that subdivision 
 to which he previously belonged ; and 
 this is the true meaning of what, in a 
 certain case, appears to be said, namely, 
 that naval employment cannot change 
 the domicil. In that case the person 
 was Scotch by origin, as well as by 
 residence during the intervals he passed 
 on shore, and could not lose that char- 
 acter by a service which was not English 
 but British ; had he entered a foreign 
 navy, hia Scotch domicil would doubt- 
 
 398 
 
 less have been lost. On the other 
 hand, the British service did not re- 
 strain the power he would otherwise 
 have had to transfer his domicil to 
 England, and it was necessary to ex- 
 amine his acts during the intervals of 
 duty, in order to ascertain whether he 
 had exercised it." But in his second 
 edition (§ 26] ) he appears to think that 
 the question whether a person by ac- 
 cepting a military commission in the 
 service of a foreign country gains a dom- 
 icil in such country is to be determined 
 by the circumstances. Dicey speaks 
 with hesitation on the subject, admitting 
 the lack of authority in the decided 
 cases, but holds (Dom. p. 139) that 
 "a person who enters the military or 
 naval service of a foreign sovereign 
 (probably) acquires a domicil in the 
 country of such sovereign." He ad- 
 mits, however, that "there may be a 
 difficulty in applying this doctrine in 
 the case of States made up of several 
 countries " (p. 140, note z). 
 
 ^ Turner, L. J. , in Jopp u.Wood, su- 
 pra. See also Phillimore, Dom. p. 76 ; 
 Westlake, Priv. Int. L. Ist ed. no. 44 ; 
 Dicey, Dom. pp. 140-143. 
 
 ' State V. Graham, In re Toner, 39 
 Ala. 464. 
 
§ 301.] DOMICIL OP SOLDIERS AND SAILORS. [CHAP. XV. 
 
 as it leaves the fact of enlistment or accepting a commission 
 open to explanation, as any other fact. It never was imagined, 
 for example, that the large number of European oflficers^ 
 who came to our assistance in our war of independence and 
 accepted commissions in the Continental army, became thereby 
 domiciled in this country ; although some weight would doubt- 
 less have been attached to such fact in the case of a person of 
 foreign birth who had previously been residing in the Colonies, 
 or who continued to reside here after his term of service was 
 at an end. 
 
 A powerful difficulty seems to lie in the way of applying the 
 British doctrine to the case of one who enters the military 
 service of a country composed of several States having differ- 
 ent systems of laws. By what law would his civil status, or, 
 in case of his death, his personal succession, be determined ? 
 On the other hand, there is no such difficulty in applying the 
 doctrine of the Alabama case, inasn\uch as it supposes other 
 facts which would serve to locate the domicil within some 
 particular legal territory. 
 
 But whichever doctrine may be accepted as correct, it can 
 only be applicable to the case of one who voluntarily enters 
 the military service.^ 
 
 § 301. Can a Soldier acquire a Foreign Comicil ? Hodgson v. 
 De Beauchesne. — If the British doctrine is sound, the con- 
 verse should follow ; namely, that one in the military or naval 
 service of a country cannot, while in that service, acquire a 
 domicil in a foreign country. This point was raised but not 
 settled in the case of General Hodgson,^ who was a colonel in 
 the service of the East India Company and a general in her 
 Majesty's service, limited to India, and who for twenty-three 
 years resided in France under circumstances in many respects 
 strongly indicative of domicil. Dr. Lushington, speaking for 
 the Privy Council, said : " We do not think it necessary, for the 
 
 1 Or take the case of tlie French involuntary service in the army of a 
 princes in the Union service during our foreign government, and acceptance of 
 late Civil War. bounty, does not deprive one of his citi- 
 
 2 This is clear without authority, zenship in this country. 
 
 See, however, State v. Adams, 45 Iowa, i Hodgson v. De Beauchesne, 12 
 99, which, though not precisely in point, Moore P. C. C. 285. 
 is analogous. It was there held that 
 
 399 
 
§ 303.] THE LAW OP DOMICIL. [CHAP. XV. 
 
 decision of this case, that we should lay down as an absolute 
 rule that no person being the colonel of a regiment in the ser- 
 vice of the East India Company, and a general in the service 
 of her Majesty, can legally acquire a domicil in a foreign 
 country. It is not necessary, for the decision of this case, to 
 go so far ; but we do say that there is a strong presump- 
 tion of law against a person so circumstanced abandoning an 
 English domicil and becoming the domiciled subject of a 
 foreign power." 
 
 Dicey ^ remarks upon this language of the Privy Council: 
 " The matter becomes, in short, a question of evidence. There 
 is the strongest presumption that D., who is in the service of 
 the English Crown, does not, even though he resides in France, 
 mean to reside there permanently ; but this presumption prob- 
 ably might be rebutted by sufficiently strong evidence." 
 
 Great effect, however, appears to have been given to the 
 fact of General Hodgsoq's military connection and the fact 
 that France was a foreign country. Lord Cranworth remark- 
 ing during the course of the argument : " If the deceased had 
 gone to Scotland on furlough and resided there as long as he 
 did in France, it would be difficult to say that he had not 
 acquired a Scotch domicil." 
 
 § 302. Id. East India Cases. — It has been held in some of 
 the East India cases that officers in the military service of 
 the company may acquire domicil in England or Scotland. 
 But these cannot be accepted as authorities upon the general 
 subject, inasmuch as (1) the East India Company was at best 
 but a quasi-sovereigatj, and the countries mentioned were 
 with it subject to the same supreme authority ; and (2) be- 
 cause, by a regulation of the company, officers who had at- 
 tained a certain rank were expressly allowed to reside where 
 they pleased, subject to the company's orders for return to duty, 
 which, however, were rarely issued.^ 
 
 § 303. Quasi-National and Municipal Domicil not affected by 
 Military Service. — The principle before discussed, whether it 
 operates as a conclusive presumption of law or only as a pre- 
 sumption of fact, has application only to national domicil. 
 
 2 Dom. p. 140. 6 Hurl. & Nor. 733; Ci'aigie v. Lewin, 
 
 1 See Attorney-General v. Pottlnger, 3 Cartels, 435. 
 
 400 
 
§303.]- 
 
 DOMICIL OF SOLDIERS AND SAILORS. [CHAP. XV. 
 
 Neither the g^asi-national nor the municipal domicil of a per- 
 son is affected by his enlistment or acceptance of a commis- 
 sion in the military or war-marine service of his country. He 
 does not thereby either lose the g'ttasi-national or municipal 
 domicil which he had when he entered the service, nor does he 
 acquire a domicil at the place where he serves.^ The reason 
 is twofold ; namely, (a) because his presence at the place where 
 he is stationed is not of his own volition, but in obedience to 
 the orders of his superiors ; and (6) because it is presumably 
 but temporary, and in the absence of proof to the contrary he 
 is presumed to retain the animus revertendi when his term of 
 service is at an end. In a recent English case^ it was at- 
 tempted to limit this doctrine to domicil of origin, but the 
 court (Pearson, J.) held that it applies also to acquired 
 domicil. 
 
 But, on the other hand, it is equally clear that he may by 
 the proper act and intention change his domicil within the 
 territory of the sovereign or country in whose service he is 
 employed.^ Said Lord President Hope, in Clark v, New- 
 
 1 Dalhousie v. McDoual, 7 CI. & F. 
 817 ; The Lauderdale Peerage, L. R. 
 10 App. Cas. 692; Attorney-General v. 
 Napier, 6 Ex. 217 ; Brown v. Smith, 15 
 Beav. 444 ; Yelverton v. Yelverton, 
 1 Swab. & Tr. 674 ; Firebrace v. Fire- 
 brace, L. E. 4 P. D. 63 ; In re Pa- 
 tience, L. E. 29 Ch. D. 976 ; In re 
 Maereight, 30 id. 165 ; Goods of West, 
 6 Jur. (n. s.) 831 ; Goods of Patten, 
 id. 151 ; Brewer v. Linnaeus, 36 Me. 
 428 ; Hampden v. Levant, 59 id. 557 ; 
 Sears v. Boston, Met. 250 ; Crawford 
 V. Wilson, 4 Barb. 504 ; Graham v. 
 Commonwealth, 51 Pa. St. 255 ; Co- 
 Tode V. Foster, 4 Brewst. 414 ; Williams 
 V. Saunders, 5 Cold. 60 ; Blucher v. 
 Milsted, 31 Tex. 621 ; Phillimore, Dom. 
 nos. 125-131 ; Id. Int. L. vol. iv. no. 
 163 etseg[. ; Westlake, Priv. Int. L. 1st ed. 
 no, 44 ; Id. 2d ed. § 257; Dicey, Dom. 
 p. 139 ; Wharton, Confl. of L. § 50. And 
 see Be Phipps, 2 Curteis, 368, and 
 White V. Repton, 8 id. 818. In Attor- 
 ney-General V. Napier, Parke, B., said: 
 " If a natural-bom subject, domiciled in 
 
 England, enters into her Majesty's ser- 
 vice, and goes abroad at the Queen's 
 command into foreign service, it is quite 
 clear that his original domicil has not 
 been parted with by him. He goes for 
 a temporary purpose, and is supposed to 
 be there for a time only, but not for the 
 purpose of fixing his permanent abode 
 abroad." In The Lauderdale Peerage it 
 was held that the fact that a person is 
 in the military seiTice is prima fctde 
 unfavorable to his acquiring a domicil 
 at the place of his service. 
 
 2 In re Maereight, supra. 
 
 ' Hodgson V. De Beauohesne, supra 
 (per Lord Cranworth, supra, § 301) ; 
 Tovey v. Lindsay, 1 Dow, 117 ; The 
 Lauderdale Peerage, supra; Attorney- 
 General «. Pottinger, supra; Cockrell 
 V. Cockrell, 25 L. J. Ch. 730 ; s. c. 
 2 Jur. (n. s.) 727 (officer on half-pay); 
 Clark V. Newmarsh, 14 S. (Sc. Sees. Cas, 
 1st ser. 1836) 488 ; Mooar v. Harvey, 
 128 Mass. 219 ; Ames v. Duryea, 6 Lans. 
 155; Westlake, Priv. Int. L. 1st ed. 
 no. 44; 2d ed. § 257 ; Wharton, Confl. 
 
 26 
 
 401 
 
§ 305.] THE LAW OP DOMICIL. [CHAP. XV. 
 
 marsh : " It may happen, though a military appointment be 
 the cause of residence, that the residence is of that fixed 
 and permanent sort which excludes the idea of any other 
 domicil remaining, and necessarily induces a new domicil in 
 the country where the residence is established." Said Morton, 
 J., in Mooar v. Harvey : " The defendant was in the military 
 service subject to the orders of his superior officers ; but it is 
 not true, as contended by his counsel, that therefore he could 
 not gain a new domicil in any place to which he was ordered. 
 In all matters not involved in his military duties he was sui 
 Juris, and had the capacity to change his domicil to any place 
 if he saw fit." 
 
 (b) Sailors in the Merchant Marine. 
 
 § 304. There is little that is peculiar with respect to the 
 domicil of a sailor in the merchant marine, except that his 
 mode of life furnishes fewer facts from which to judge of his 
 animus than are usually furnished in the lives of other people, 
 and therefore perhaps greater importance is to be attached to 
 certain facts when they appear in his case than in the cases 
 of others. But this is a matter of evidence solely. 
 
 § 305. A sailor in the merchant marine does not lose his 
 domicil by following the sea, even though his absence is pro- 
 longed for years.^ But, on the other hand, there is nothing in 
 the vocation of the sailor which of itself prevents him from 
 changing his domicil to whatever place he sees fit.^ It has 
 been said that " a foreigner continuously and exclusively em- 
 ployed in the vessels of a nation may by length of time acquire 
 a residence in that nation as effectually as though he had re- 
 mained upon the land within its boundaries." » But it will be 
 
 of L. § 50. In The Lauderdale Peerage, Me. 556 ; Granby v. Amherst, 7 Mass. 
 
 supra, Lord Selhorne said that a military 1 ; Thomdike v. Boston, 1 Mete. 242 ; 
 
 officer may acquire a domicil at the place Sears v. Boston, id. 250; Matter of 
 
 where he serves, if his "residence be Scott, 1 Daly, 634 ; Guier v. O'Daniel, 
 
 accompanied and explained hy clear 1 Binn. 349, note, 
 
 proof of an intention to settle there = Bangs d. Brewster, 111 Mass. 382; 
 
 permanently, sine animo revertendi." Sherwood v. Judd, 3 Bradf. 267 ; Mat- 
 
 1 Aikman v. Aikman, 3 Macq. H. L. ter of Bye, 2 Daly, 525. 
 
 Cas. 854 ; Porterfield v. Augusta, 67 » Matter of Bye, supra. In this 
 402 
 
§ 305.] 
 
 DOMICIL OP SOLDIERS AND SAILORS. [CHAP. XV. 
 
 seen that this is merely a principle of evidence. Such length 
 of service, like length of residence on land, may be evidence of 
 
 case the subject of the doinicil of sailors 
 was ably and fully considered by Daly, 
 First Judge. He said : "The applicant 
 is a native of Holland, and is now forty- 
 nine years of age. He came to this 
 country thirty years ago as the steward 
 of an American vessel, and remained 
 residing here continuously for nine years. 
 He then went to sea, and twenty years 
 ago was married at Mastenbroek in Hol- 
 land, where his wife and two of her 
 children have ever since resided. For 
 five years thereafter he sailed in foreign 
 vessels, chiefly from ports to and from 
 Holland, occasionally visiting his fam- 
 ily for short periods as his occupation 
 would permit. About fifteen years ago 
 he returned to the United States, and 
 has ever since been employed as a mari- 
 ner in the merchant marine of this 
 country, sailing for the last six years 
 exclusively in vessels belonging to the 
 port of New York, during which time 
 he has seen his wife and family but 
 twice, upon leave of absence granted to 
 him while employed on board American 
 vessels that were temporarily at the 
 ports of Rotterdam and Antwerp. He 
 has had no rupture with his wife and 
 family, but, on the contrary, has trans- 
 mitted to them regularly an adequate 
 portion of his wages for their support. 
 He has repeatedly solicited his wife to 
 come with her children to this country 
 and live in the city of New York, which 
 is now and has been practically his 
 home when upon shore for the last fif- 
 teen years; but she has preferred to re- 
 main at Ma.stenbroek, where she was 
 bom and married, having, in addition, 
 a natural repugnance to or fear of ven- 
 turing upon the sea. His return to this 
 country was induced by the circum- 
 stance that he could do better here than 
 in Holland, and it is now and has long 
 been his intention to continue here for 
 the remainder of his Ufe, being very 
 much attached to a country where his 
 industry has met with a greater reward, 
 and where his prospects for the future 
 
 are better, than in the country of his 
 birth. Three years ago his eldest child 
 was sent here at his request, voluntarily, 
 by his wife, and is now supported by 
 him in this city. In November, 1861, 
 he declared his intention in this court 
 to become a citizen of the United States . 
 He was then employed as the chief 
 mate of a vessel belonging to this port, 
 in which he has continued ever since. 
 The ownersof this vessel wish and intend, 
 if he becomes a citizen of the United 
 States, to appoint him to the responsi- 
 ble position of master. They give him 
 a high character for fidelity, integrity, 
 industry, and capacity. We have re- 
 peatedly held, in this court, that a mari- 
 ner of foreign birth, who has been em- 
 ployed exclusively in American vessels 
 for five years continuously prior to his 
 application to be admitted a citizen, and 
 who, for the last year of that term, has 
 shipped only in vessels belonging to the 
 port of New York, is, within the mean- 
 ing of the naturalization laws, to be 
 deemed a resident, during that term, of 
 the United States, and a resident of 
 this State for one year, unless there are 
 circumstances which show that he has 
 maintained and kept up his previous 
 residence (In the Matter of Scott, 1 Daly, 
 534; In the Matter of Hawley, id. 531; 
 Dunlap's Laws of the United States, 
 pp. 307, 493, 494, 1167; Story's Con- 
 flict of Laws, sees. 42 to 48). A foreigner 
 continuously and exclusively employed 
 in the vessels of a nation may, by 
 length of time, acquire a residence in 
 that nation as eflfectually as though he 
 had remained upon the land within its 
 boundaries ; for vessels are subject to 
 the jurisdiction of the country to which 
 they belong, and, for certain purposes, 
 are regarded as part of its territory ; as 
 in the case put by Vattel of a child 
 born in the vessel of u nation upon 
 the high seas, which he says may be 
 reputed to be bom in its territories 
 (Vattel, B. 1, c. 19, see. 216, and see 
 Lawrence's Wheaton, p. 209). Every 
 
 403 
 
§ 305.] 
 
 THE LAW OF DOMICIL. 
 
 [chap. XV. 
 
 intention, but is not equivalent to it ; and a change of domicil 
 could not be held under such circumstances if animus rever- 
 
 human being has a fixed domioil. Origi- 
 nally it is the place where his parents 
 lived at the time of his hirth, which 
 continues until he has acquired an- 
 other ; for although there are supposed 
 exceptional cases (Vattel, B. 1, c. 19, 
 sec. 219 ; Cochin, t. 1, p. 184 ; Foeltx, 
 Droit Int. Prive, t. 1, sec. 29, n. 2), as 
 gypsies, vagrants, or those wandering 
 vagabonds or outcasts who do not know 
 where or when they were bom, it is 
 not so in fact; for the place of birth 
 when known is the domicil (1 Bl. Com. 
 366, 369 ; Story's Conflict of Laws, 
 sec. 48); or if not known, then it is the 
 place of which the Individual has the 
 earliest recollection, where he was first 
 seen and known by others. Unless an 
 individual is controlled by circum- 
 stances, his residence, using that term 
 in the sense of domicil, is the result 
 of his own voluntary acts ; and the ques- 
 tion whether he has or has not ac- 
 quired one depends less upon the ap- 
 plication of any general rules than upon 
 a consideration of the circumstances of 
 his individual case. It is, as Lord 
 Loughborough said in Bempde v. John- 
 stone (3 Tes. 251), more a question of 
 fact than of law. If he is a mariner, his 
 calling is one that compels him, as a 
 means of livelihood, to traverse the sea 
 from one port or place to another ; and 
 while the voyage continues for which 
 he has shipped, his place of abode is 
 the vessel to which he belongs, whether 
 she is temporarily in port or pursuing 
 her course over the ocean. In the short 
 intervals that elapse, in following such 
 a vocation, between the termination of 
 one voyage to the beginning of an- 
 other, his place of abode is necessarily 
 upon the land; but he does not change 
 his domicil or acquire a new one, un- 
 less his acts clearly indicate that he 
 has done so by making some one par- 
 ticular place or country his residence, 
 with no present purpose of changing 
 it. If it is usual with him, when out 
 of employment, to ship in any vessel 
 
 404 
 
 the master of which will engage hira, 
 wholly indifierent as to the place or 
 country to which she belongs, or as to 
 the part of the world in which he 
 may find himself when the contract is 
 at an end, then it is inferable that no 
 intention existed to acquire a new dom- 
 icU, but to suffer that to continue 
 which he had when he commenced his 
 vocation as a mariner. Another cu'- 
 cumstance, and generally a controlling 
 one, is that he is a married man whose 
 residence is naturally at the place and 
 in the country where his wife and 
 family dwell (Pothier's Coutumes d'Or- 
 leans, c. I. sees. 20, 15). But this is not 
 conclusive in all cases ( Forbes v. Forbes, 
 Kay, 341; Phillimore on Domicil, sec. 
 203; Story's Conflict of Laws, sec. 46), 
 for it is not in the power of a man's wife 
 or family to control his free right to fix 
 his residence and place of permanent 
 abode in any part of the world to which 
 his interests or his inclination may lead 
 him. It is the wife's duty to follow 
 the fortunes of the husband ; to go 
 'whither he goeth' and abide in that 
 place where it is most convenient for 
 him to enjoy her society, and where he 
 is able and willing to make provision 
 for her support and that of his chil- 
 dren. The circumstances of the present 
 case show that the applicant. Bye, is 
 not to be classed with those mariners 
 who are indifferent to. the nationality 
 of the vessel they engage in ; to whom 
 any ship is acceptable when the stipu- 
 lated wages are paid, wherever she is 
 found, whatever may be the flag she 
 bears, or whither she may be going. 
 On the contrary, he has limited him- 
 self, for the last fifteen years, in the 
 pursuit of his calling, to the vessels of 
 the United States. He has done so 
 from interest and inclination ; he has 
 resided here for nine years in the youth- 
 ful part of his life, and now, after the 
 test of fifteen years of service in the 
 merchant marine of this country, it is 
 his fixed intention to continue here for 
 
§ 306.] DOMICIL OP SOLDIERS AND SAILORS. [CHAP. XT. 
 
 tendi appears. It was held in an English case,* that where no 
 other facts appear a mariner will be considered a resident at 
 the port to which his ship belongs. But this is only a prima 
 fades which is very easily overcome. It has been held that a 
 sailor is domiciled where he spends most of his time on shore ; ^ 
 and doubtless this is usually true, but it is far from being 
 universal or conclusive. For instance, in Aikman v. Aikman, 
 a Scotchman during a maritime service of upwards of thirty 
 years spent most of the intervals (which were often long) 
 between his voyages in London, although occasionally visit- 
 ing Scotland; and he was held to have retained his Scotch 
 domicil. 
 
 § 306. Residence of Wife of Great Importance in determining 
 the Domicil of a Sailor. — Greater stress seems to be laid upon 
 the residence of the wife as evidence of domicil in the case of 
 a sailor than in other cases.^ But, as in other cases, the resi- 
 dence of the wife is not conclusive. In Bye's case it was held 
 that a sailor had changed his domicil from Holland to New 
 York, although his wife and family remained behind him and 
 he supported and occasionally visited them, it appearing that 
 he had constantly but unavailingly endeavored to induce his 
 wife to remove to America. 
 
 the remainder of his life, — an intention uralized citizen, because his wife is 
 
 not simply gathered from his avowal unwilling to come here and take up her 
 
 now, but one repeatedly expressed here- abode with him. In my judgment he 
 
 tofore to the owners of the vessel by has been for the last fifteen years a resi- 
 
 whom he is at present employed, which dent of this country, and for the last 
 
 he has also expressed to his wife, and five a resident of this State, and is 
 
 manifested by his eflForts to induce her entitled to be naturalized (Guier v. 
 
 to come over to this country with the O'Daniel, 1 Binn. R. 349; Kotza's Case 
 
 younger children and live with him Sen. Doc. 1)." 
 
 here. If, as is evidently the case, he * Blaaw v. Charters, 6 Taunt. 458. 
 
 finds it to his interest to continue here See also Matter of Bye, supra. 
 in the employment in which he has * Sherwood v. Judd, supra. See also 
 
 been engaged for so many years he Boothbay v. Wiscasset, 3 Greenl. 354. 
 should not be deprived of the benefits l Sherwood v. Judd, supra ; Matter 
 
 and advantages attendant upon a con- of Scott, supra. See also Bangs v. 
 
 tinuous residence in this country, among Brewster, 111 Mass. 382. 
 which is the right of becoming a nat- 
 
 405 
 
I 308.] THE LAW OP DOMICIL. [CHAP. XVI. 
 
 CHAPTER XVI. 
 
 DOMICIL OF PARTICULAR PERSONS (^Continued'), — PUBLIC 
 CIVIL OFFICERS, 
 
 § 307. The domicil of one class of public servants — namely, 
 soldiers and sailors in the war-marine service — has already- 
 been considered.^ Another class — to wit, ambassadors and 
 consuls — will hereafter be considered by itself.^ It is neces- 
 sary, however, here to treat in a general way of persons 
 in public civil office or employment ; and concerning them 
 several general rules may be laid down : — 
 
 § 308. Life Functionaries. — First. If an office the duties of 
 which are to be performed at a particular place be irrevocably^ 
 conferred upon a person for life, the law fixes his domicil at 
 the place where the functions are to be performed.^ In such 
 case the law presumes animus manendi; and this is so, no 
 matter whether the official constantly reside at the place or 
 not, and even if he has a habitation elsewhere.^ This, how- 
 ever, must not be understood to apply to an office whose duties 
 require only the occasional presence, but to one whose duties 
 require substantially constant presence.* Denizart, who has 
 treated of the domicil of public officers at (for him) unusual 
 length, says : ^ " Those who are attached to a residence by a 
 perpetual title are considered to be domiciled at the place of 
 their functions, whatever place of abode they may have else- 
 where ; even when this abode (which they have elsewhere) 
 has all the characteristics of their principal habitation, one 
 
 1 Supra, eh. 15. Priv. Int. L. 1st ed. no. 44 ; 'WTiarton, 
 
 2 Infra, ch. 17. Confl. of L. § 51 ; Code Civil, art. 107; 
 
 1 Thatis, substantially and practically Commonwealth v. Jones, 12 Pa. St. 365, 
 so conferred, e. g., during good behavior, per Gibson, C. J. 
 
 2 Pothier, Intr. aux Gout. d'OrUana, * Denizart, verb. Dom. no. 21. 
 
 nos. 15, 16 ; Merlin, Repertoire, verb. * Denizart, loc. cit. ; Cochin, (Euvres, 
 
 Dom. § 3 ; Denizart, verb. Dom. no. 21 t. 9, p. 124 ; Merlin, Repertoire, verb, 
 
 et seq. ; Calvo, Diet. verb. Dom. ; Phil- Dom. § 3 j Demolombe, Cours de Code 
 
 limore, Dom. no. 113 et seq. ; Id. Int. Napoleon, t. 1, no. 365. 
 L. vol. iv. no. 149 et seq.; Westlake, ' Loc. cit. 
 
 406 
 
§ 309.] DOMICIL OP PUBLIC CIVIL OFFICERS. [CHAP. XVI. 
 
 may not attribute to them an intention contrary to duty. 
 Thus, a magistrate is always presumed to be domiciled in the 
 place where he exercises his functions." He includes also in 
 the same category bishops, cures, canons, and other ecclesi- 
 astics, subject to residence.^ The Code Civil ^ provides : " The 
 acceptance of functions conferred for life will import imme- 
 diate translation of the domicil of the functionary into the 
 place where he ought to exercise such functions." Tribune 
 Mouricault, in his speech to the Tribunat,^ explains this pro- 
 vision thus : " The law ought to presume that the citizen who 
 accepts perpetual functions wishes to devote himself resolutely 
 to them, to perform his duties with exactness, to establish 
 himself for that purpose at the place of their exercise, to live 
 at least principally in that place. It cannot admit any other 
 presumption with regard to the life functionary, to the extent 
 of intending to give countenance to a different course of con- 
 duct. It would be a calumny upon it to suppose of it such 
 inconsequence or such feebleness." 
 
 § 309. Id. — There is some difference of opinion as to the 
 point of time at which the law ascribes to a life functionary a 
 domicil at the place where he is required to exercise his func- 
 tions. Pothier^ fixes it at the time of arrival; but later French 
 jurists,^ considering the language of the article (already 
 given) definitive, hold that the translation of domicil results 
 solely and immediately from the acceptance, — that is to say, 
 from the taking of the oath. And this is the generally re- 
 ceived opinion, notwithstanding the possibility of such anoma- 
 lous results as that pointed out by Valette.^ He supposes the 
 case of a functionary dying at Paris after having accepted 
 functions from which he is not removable, and taken the oath ; 
 and says it is certainly strange that his succession should be 
 
 s Id. no3. 22-26. are there amved, we there acquire a 
 
 ' Art. 107. new domicil and lose the old." 
 8 Stance du 18 Ventdse, An 11. ^ Demolombe, Cours de Code Napo- 
 
 1 Intr. aux Cout. d'Orleans, no. 15. leon, t, 1, no. 364 ; Duranton, Conrs 
 
 He says : " Intention to transfer our de Droit Civil r'ran9ai3, t. 1, no. 861 ; 
 
 domicil into another place ought to be Delvincourt, Cours de Code Civil, t. 1, 
 
 justified. It is not equivocal when it p. 42, note 3 ; Marcad^ Conrs de Code 
 
 is a benefice or charge or any other em- Civil, t. 1, art. 107 ; Aubry et Rau, sur 
 
 ployment non a/mmible which calls us Zachariae, t. 1, 143. 
 there. In this case, from the time we ^ Explic. Somm. 1. 1, p. 61. 
 
 407 
 
§ 310.] THE LAW OP DOMICIL. [CHAP. XVI. 
 
 opened at the extremity of Prance, maybe in a place where he 
 has never appeared and where is not found any paper or docu- 
 ment relative to his succession. But in the absence of any 
 positive law on the subject, the doctrine of Pothier seems to 
 be the only safe one. 
 
 § 310. Holders of Temporary or Revocable Offices or Em- 
 ployments. — Second. A public office or employment of a 
 temporary or revocable character does not fix the domicil of 
 the holder at the place where its duties are to be performed, 
 even though he may r eside, there in the performance of them 
 for a long time ; but, on the contrary, he is presumed to retain 
 his former domicil.^ In the case of a temporary office or em- 
 ployment there can be no difficulty, inasmuch as temporary 
 resid ence; whatever may be its cause or purpose, cannot confer 
 domicil. But with regard to an office or employment which, 
 though granted for an indefinite time, is in its nature revo- 
 cable, the rule is the same. In such case the residence, how- 
 ever long it may last, being constantly liable to be ended, and 
 being referable solely to the duties of the office or employ- 
 ment, no inference can be drawn from it of such animus ma- 
 nendi as is necessary for the establishment of domicil, — 
 especially national or g'wasi-national domicil ; and upon the 
 principle that domicil once shown to exist remains until it is 
 shown to have been changed, the person retains the domicil 
 which he had when he entered upon such office or employ- 
 ment, unless other circumstances than mere residence appear. 
 In general, it may be said that the official in such cases is 
 presumed to intend to return to his former place of abode 
 
 ' Attorney-General i>. Pottinger, 6 v. Paulding, 19 Minn. 488 ; Zangerus, 
 
 Hurl. & Nor. 733 ; Attorney-General De Except, pt. 2, cli. 1, nos. 52, 53 
 
 V. Eowe, 1 Hurl. & Colt. 31 ; Douglas Denizart, verb. Dom. no. 27 et seq. 
 
 V. Douglas, L. E. 12 Eq. Cas. 617 ; Bouhier, Obs. sur la Gout, de Bourg, 
 
 Eyan v. Malo, 12 L. Can. 8; Wood- ch. 22, p. 443, ed. 1742; Pothier, Intr. 
 
 worth V. St. Paul M. & M. Ry. Co. 18 aux Cout. d'Orleans, no. 15 ; Philli 
 
 Fed. Rep. 282 ; Atherton v. Thornton, more, Dom. no. 113 ; Id. Int. L. vol. iv. 
 
 8 N. H. 178 ; Harvard College v. Gore, no. 149 ; Westlake, Priv. Int. L. 2d ed 
 
 5 Pick. 370 ; Commonwealth v. Jones, § 257 ; Dicey, Dom. p. 137. The die- 
 
 12 Pa. St. 365; Dauphin County v. teTn of Lord West bury in Udny w. TJdny, 
 
 Banks, 1 Pears. 40 ; Tyler v. Murray, L. R. 1 Sch. App. 441, 458 (see supra, 
 
 57 Md. 418 ; State v. Grizzard, 89 N. § 195), doubtless had reference to tern. 
 
 C. 115 ; State v. Dennis, 17 Fla. 889 ; porary or revocable oflace. 
 Yonkey v. State, 27 Ind. 236 ; Venable 
 408 
 
§ 311.] DOMICIL OF PUBLIC CIVIL OFFICERS. [CHAP. XTI. 
 
 whenever his tenure of office is at an end; but even if it 
 appear that he intends in such event to settle in a third place, 
 the result would be the same. 
 
 §311. Id. Continental Authorities. — Zangerus^ says: "An- 
 dreas Alciatus interrogatus respondit, non contraxisse do- 
 micilium, cum ob causam prsefecturse, vel aliam, eo loci 
 commoretur et finito officio prsesumatur rediturus ad locum 
 sui domicilii ; quam sententiam veram esse existimo, nisi 
 aliae concurrant conjecture, ex quibus manifestum sit, prius 
 domicilium esse relictum. Si enim res, quas alibi possidebat, 
 vendiderit et cum familia in eum locum demigraverit et habi- 
 tet, sane ibidem domicilium contraxisse meo judicio videtur, 
 per ea qua tradita sunt supra. Secus vero si alibi bona, prse- 
 sertim immobilia retinuisset et ibidem instructus esset, per ea 
 quae dixi supra." Denizart ^ says : " It is otherwise concerning 
 those who, instead of a perpetual title, have only momentary 
 occupation in the place which they inhabit ; their hab itation 
 is regarded as a consequence of their employment, of their 
 business, or their occupation ; it is presumed that they have 
 always preserved the intention of returning to their former 
 domicil at the time when their business shall be finished, even 
 when^jtheyjiaye n ot pre ser ved a dwelling-house the re; when, 
 on the contrary, they have at the place whence their business 
 has attracted them, a considerable dwelli ng-house , all their 
 movables, their domestic servants, and all that which may 
 contribute to the convenience of life, they are considered to 
 have retained their former domicil." 
 
 Denizart cites a number of cases which had been decided 
 by the French courts ; one of special interest being that of 
 Sieur Garengeau,* who was born at Paris, but died, at the age 
 of ninety-four years, in the exercise of the office of director of 
 the fortifications in Brittany, where he had resided sixty-four 
 years, — namely, nine years at Brest, and fifty-five years at St. 
 Malo, dying at the latter place. Notwithstanding this long 
 residence, he was presumed to be domiciled at Paris where 
 he was born. 
 
 The French Code provides* that "the citizen called to a 
 
 1 Loc. eii. 
 
 s Id. no. 83. 
 
 2 Verl. Dom. no. 27. 
 
 * Art. 106. 
 
 
 409 
 
§ 312.] THE LAW OF DOMICIL. [CHAP. 2VI. 
 
 public function, temporary or revocable, shall preserve the 
 domicil which he already had, if he has not manifested any 
 contrary intention." 
 
 § 312. Id. English Cases. — In England and America the 
 doctrine is well settled as above stated. In Attorney-General 
 V. Pottinger,! the Court of Exchequer held that one who re^ 
 sides in a colony as governor, to which position he has been 
 appointed for a fixed time, does not thereby gain a domicil 
 there. Attorney-General v. Eowe,^ in the same court, fur- 
 nishes an example of a revocable ofi&ce. R., whose domicil 
 of origin was English, was appointed Chief Justice of Ceylon 
 during the pleasure of the Crown. His commission contained 
 a clause obliging him to actual residence within the said 
 island, and to execute the said office in his person ; and in 
 consequence of such appointment he went to Ceylon, taking 
 with him his family, and continued to reside there in the dis- 
 charge of his official duties until his death, about four years 
 afterwards. Under these circumstances, his domicil was held 
 to have continued up to the time of his death. Wilde, B., 
 said : " The testator went as a judge to Ceylon ; but the case 
 is devoid of any expressions or act of his, from which the 
 court can draw a conclusion that he intended to make that 
 place his domicil. The fact that he left his library in Eng- 
 land, points the other way. The onus is on those who wish to 
 establish a foreign domicil ; and they have nothing to rely 
 upon but the isolated fact that the testator accepted a judicial 
 office and went to Ceylon. England was his domicil of origin ; 
 he had lived there all his life, and he left on his appointment 
 as Chief Justice of Ceylon. There was nothing permanent 
 in the nature of that appointment, nothing inconsistent with 
 his domicil of origin. If regarded strictly, and without the 
 knowledge which we extra-judicially possess, it was a colonial 
 office during the pleasure of the Crown, and therefore of a 
 temporary nature ; if regarded with the light of that knowl- 
 edge, it was an office to be enjoyed for a limited time, after 
 which a pension would probably have been granted to him. 
 It is, therefore, a case of r esidence adopted for a s pecial and 
 
 1 6 Hurl. & Nor. 783. a 1 Hurl. & Colt. 31. 
 
 410 
 
§ 313.] DOMICIL OP PUBLIC CIVIL OFFICERS. [CHAP. XVI. 
 
 temporar y purpose, and for a time which, though not defi- 
 nitely fixed, was not likely to be indefinitely prolonged. Such 
 a residency does not, in my opinion, of itself create a domicil, 
 though possibly a domicil might emanate from such a resi- 
 dence, if protracted for a considerable time. In this case 
 there was no such lapse of time, and therefore, in my opinion, 
 no new domicil was acquired." 
 
 In Douglas v. Douglas,* Wickens, V. C, held that one whose 
 domicil of origin was Scotch did not gain an English domicil 
 by ten years' residence in London as a clerk in the Home 
 Office, there appearing no evidence of " any intention to settle 
 finally and for life in England." 
 
 § 313. Id. American Cases. — In Yonkey V. State,-* it was 
 held that an assistant doorkeeper of the United States House 
 of Representatives (whose tenure of office cannot, without 
 re-appointment, exceed the life of the House itself, or two 
 years) does not, by reason of his presence at Washington 
 during the sittings of Congress, lose the legal residence which 
 he had at the time of his appointment. In Dauphin County 
 V. Banks,2 it was held that the Auditor-General of Pennsyl- 
 vania, whose official tenure was for three years, did not by 
 virtue of his office acquire a domicil at Harrisburg, the seat 
 of government, although the law required his office to be kept 
 and his official duties to be performed there. 
 
 Instances of revocable offices are furnished in the cases in 
 which the question of the domicil of clerks and other employ- 
 ees in the government departments at Washington has been 
 discussed. It has been uniformly held that such persons do 
 not acquire a domicil there by their presence in discharge of 
 their official duties, nor do they lose thereby the domicil 
 which they had at the time of their appointment.* 
 
 ' L. E. 12 Eq. Cas. 617. ■Washington, Shiras, J., said, in Wood- 
 
 1 27 Ind. 236. worth v. St. Paul M. & M. Ey. Co. : 
 
 ^ 1 Pears. 40. " They may be even oommissioned for a 
 
 8 Woodworth v. St. Paul M. & M. given length of time or for an indefinite 
 
 Ey. Co. 18 Fed. Eep. 282 ; Atherton v. time ; still they ordinarily remain oiti- 
 
 Thornton, 8 N. H. 178 ; Tyler v. Mur- zens of the State from which they 
 
 ray, 57 Md. 418; State '•>. Grizzard, 89 started, and they are supposed generally, 
 
 N. C. 115 ; State v. Dennis, 17 Fla. when they leave their situations, to re- 
 
 389; Venable v. Paulding, 19 Minn, turn to the State which they left. " In 
 
 488. Speaking of Department Clerks at Atherton v. Thornton, Parker, J., said : 
 
 411 
 
§ 316 ] THE LAW OP DOMICIL. [CHAP, XVI. 
 
 § 314. Public OfBcer may acquire Domicil where the Duties 
 of his Office are to be performed. — Third. There is nothing in 
 the fact of holding a public office or employment which pre- 
 vents the holder from acquiring a domicil at the place where 
 his duties are performed.^ He may acquire a domicil there 
 if he sees fit to do so ; and whether he does so or not is to be 
 determined in substantially the same manner and by the same 
 methods of proof as in other cases, except that in his case no 
 inference is to be drawn from length of residence, nor, at 
 least generally, from the presence of his wife and family, 
 nor from such similar circumstances as usually accompany 
 residence, whether temporary or permanent. 
 
 Article 106- of the French Code provides for cases of this 
 kind by the exception, " if he has not manifested any contrary 
 intention." 
 
 § 315. Public Officer remaining after Expiration of Office. — 
 If a person who has come to reside in a place where his offi- 
 cial duties are performed, remains there after his term of 
 office has expired, or his appointment has been revoked, such 
 continued residence is evidence of the acquisition of domicil 
 there.i 
 
 § 316. American State Constitutions. — Many of the State 
 constitutions contain, with reference to voting, a provision 
 that " No person shall be deemed to have gained a residence 
 by reason of his presence, or lost it by reason of his absence, 
 while employed in the service, either civil or military, of this 
 State or of the United States." ^ This provision has been 
 
 " It has generally been considered that ■». Fitzgerald, 3 Or. 568 ; Zangerus, De 
 
 persons appointed to public office under Except, pt. 2, c. 1, no. 53 ; Denizart, 
 
 the authority of the United States, and verb. Dom. no. 21 et seg. ; Pothier, Intr. 
 
 taking up their residence in "Washing- aux Gout. d'Orl&ns, no. .15 ; Philli- 
 
 ton for the purpose of executing the more, Dom. no. 113 et seg. ; Id. Int. L. 
 
 duties of such office, do not thereby, vol. It. no. 149 et seg. ; Westlake, Priv, 
 
 while engaged in the service of the Gov- Int. L. 2d ed. § 267 ; Dicey, Dom. p. 
 
 ernment, lose their domicil in the place 137. 
 
 where they before resided, unless they in- l Pothier, Intr. aux Cout. d'OrUans, 
 
 tend, on removing there, to make Wash- no. 15. 
 
 ington their permanent residence." i The above is from the Pennsylvania 
 
 1 Goods of Smith, 2 Robertson, Eool. Constitution of 1874. Similar provis- 
 
 332 ; Comm'rs of Inl'd Eev. v. Gordon's ions occur in the Constitutions of Cali- 
 
 Ex'rs, 12 D. (Sc. Sess. Cas. 2d ser. 1850) fornia, Colorado, Kansas, Michigan, 
 
 667; Baaphin County?). Banks, SMjom; Minnesota, Missouri, Nevada, New 
 
 People V. Holden, 28 Cal. 123 ; Wood York, and Oregon. 
 
 412 
 
§ 316.] DOMICIL OF PUBLIC CIVIL OFFICERS. [CHAP. XVI. 
 
 held to be declaratory of the un-written law, and not to 
 alter it, in several cases in which the employment was tem- 
 porary and revocable.^ What effect it might have upon 
 the case of one who held a life office, seems not to have been 
 discussed. 
 
 * People V. Uoldeii, supra ; 'Wood v. Fitzgerald, supra. 
 
 413 
 
§ 317.] THE LAW OF DOMICIL. [CHAP. XVII. 
 
 CHAPTER XVII. 
 
 DOMICIL OP PARTICULAR PERSONS (continued), — AMBASSADORS 
 
 AND CONSULS. 
 
 (a) Ambassadors, 
 
 § 317. The Domicil of a Person is not affected by entering 
 the Diplomatic Service of his Country abroad. — It is a well- 
 settled general rule that an ambassador does not gain a dom- 
 icil in the country to which he is accredited, even though his 
 residence there is long continued;^ and this rule extends as 
 well to his suite as to himself. But there is some difference 
 of opinion as to the grounds upon which the rule rests. By 
 some writers it is put upon the ground of special privilege 
 and the fiction of extra-territoriality,^ by which an ambassa- 
 dor, " though actually in a foreign country, is supposed still 
 to remain within the territory of his own sovereign." ^ Upon 
 this theory the necessary factum of change of bodily presence 
 is presumed to be wanting, and hence no change of domicil 
 can occur. This view is maintained by Phillimore, Wharton, 
 and apparently by Westlake in the first edition of his work 
 on Private International Law, but is discarded by him in his 
 second edition.* It has also, apparently, the support of a re- 
 
 1 Attorney-General v. Kent, 1 Hurl. 2 Phillimore, Dom. no. 132 ; Id. Int 
 
 & Colt. 12 ; Sharpe v. Crispin, L. E. 1 L. vol. iv. no. 171 ; Wharton, Confl. of 
 
 P. & D. 611 ; Bruce v. Bruce, 2 Bos. & L. § 49 ; Westlake, Priv. Int. L. 1st ed. 
 
 P. 229, note ; Crawford v. Wilson, 4 no. 47. 
 
 Barb. 504 ; Commonwealth v. Jones, 12 " Wheaton, Int. L. pt. 3, ch. 1, 
 
 Pa. St. 365 ; Voet, Ad Pand. 1. 5, t. 1, § 15. 
 
 no. 98 ; Douellus, De Jure Civili, 1. 17, « § 261. He says : " Certainly the 
 
 c. 12, p. 978 6, no. 50 ; Vattel, bk. 1, diplomatic seryice presents a much 
 
 <J. 19, §§ 217, 218 ; Wolf, Jus Gent, stronger case than any other against 
 
 c. 1, § 187 ; Henry, For. Law, p. 206 ; the acquisition of a foreign domicil. 
 
 Phillimore, Dom. no. 132 et seq. ; Id. The fiction that the hotel of an embassy 
 
 Int. L. vol. iv. no. 171 et seq. ; West- is a part of the soil of the ambassador's 
 
 lake, Priv. Int. L. 1st ed. no. 47 ; Id. country would formerly, no doubt, have 
 
 2d ed. §§ 257, 258, and 261 ; Dicey, been used as an argument against the 
 
 Dom. pp. 137, 138 ; Story, Confl. of L. existence of the fact, which is no less 
 
 § 48 ; Wharton, Confl. of L. § 49. necessary than the intention : but if 
 414 
 
§ 319.] DOMICIL OP AMBASSADORS. [CHAP. XVII. 
 
 mark thrown out during the course of the argument in Attor- 
 ney-General V. Pottinger,^ by Pollock, 0. B., who, however, 
 took a different view in the subsequent case of the Attorney- 
 General V. Kent.® 
 
 § 318. Id. Attorney-General v. Kent. — In the latter case 
 the extra-territorial theory was put forward for the defendant, 
 and was argued with great learning and ingenuity by eminent 
 counsel, among whom was Dr. Phillimore. They contended 
 on this theory : (1) that an ambassador and his suite are 
 incapable of acquiring a domicil in the country to which the 
 former is accredited ; and (2) that a person who, having his 
 domicil of origin in one country, and having acquired a domi- 
 cil of choice in another, is appointed by the government of 
 the former country to its diplomatic service in the latter, ipso 
 facto, and immediately regains his domicil of origin; the 
 domicil of a person in the diplomatic service, according to 
 their contention, not depending upon the factum or animus, 
 but being a domicil cast upon the party by operation of law. 
 And this no doubt is the logical result of the application of 
 the principle of extra-territoriality. 
 
 It is true that this was a case in which the person whose 
 domicil was in question had acquired a domicil in England 
 before he entered the diplomatic service there of his native 
 country ; but it is difficult to see how the application of the 
 principle of extra-territoriality, if valid at all, can stop short 
 of reaching the conclusion that the domicil of one in such 
 service does not depend upon factum or animus, but is cast 
 upon him by operation of law. If valid at all, it must apply 
 to all cases of persons in the diplomatic service, without re- 
 gard to where they were domiciled at the time they entered 
 such service ; and, conversely, if invalid in one case, it must 
 be invalid in all. 
 
 § 319. Id. id. — But the view urged by counsel for defend- 
 ant was wholly repudiated by the Court of Exchequer, Bram- 
 well, B., saying : " It is said that the effect of his accepting 
 the office of attacks was, that notwithstanding the factum and 
 
 the question should now arise, it will ^ 6 Hurl. & Nor. 733, 740. 
 probably be discussed on real and not ' 1 Hurl. & Colt. 12. 
 on fictitious grounds." 
 
 415 
 
§ 319.] THE LAW OP DOMICIL, [CHAP. XVII. 
 
 animus — his continuous residence in England for a series of 
 years, and bis evident desire to retain an English domicil — 
 the fact of his having become an attachi would cause him to 
 lose that domicil ; because an ambassador and his suite are 
 extra-territorial, and therefore, as soon as the testator was 
 appointed attachS, he became, as it were, out of England and 
 in Portugal. I am clearly of opinion that it is not so, and I 
 cannot help adverting to what was said by Lord Mansfield in 
 Mostyn v. Fabrigas:^ 'It is a certain rule that a fiction of 
 law shall never be contradicted to defeat the end for which 
 it was intended, but for every other purpose it may be 
 contradicted.' Assuming that the Portuguese ambassador 
 and his suite are exempt from local jurisdiction, because they 
 may be considered as residing in Portugal ; that is only for 
 the purpose of their protection, dignity, and comfort, not for 
 the purpose of rendering their property free from legacy duty 
 after their death. We must not be supposed to be deciding 
 contrary to the comity of nations. We do not say that if a 
 foreigner came to England and resided here as ambassador 
 for forty or fifty years, he would thereby, simplioiter, acquire 
 an English domicil, and his property become subject to legacy 
 duty. What we say is, that a foreigner, having acquired an 
 English domicil, does not lose it, ipso facto, by accepting a 
 diplomatic appointment." Wilde, B., remarked also : " The 
 question is whether the fact of the testator having filled the 
 ofiice of attachS from the year 1857 until his death altered 
 the domicil which he had previously acquired. It has been 
 argued that it did, because by a fiction of law it put him 
 out of England and into Portugal. But I agree with my 
 brother Bramwell, that is straining the fiction of law to a 
 purpose which was never intended. I am fortified in that 
 opinion by a passage in Wheaton on International Law, which 
 was relied on by the defendants' counsel: 'Prom the mo- 
 ment a public minister enters the territory of the state to 
 which he is sent, during the time of his residence until he 
 leaves the country, he is entitled to entire exemption from 
 local jurisdiction, both civil and criminal. Representing the 
 rights, interests, and dignity of the sovereign or state by whom 
 
 1 Cowp. 177. 
 416 
 
§ 320.] DOMICIL OP AMBASSADORS. [CHAP. XTII. 
 
 he is delegated, his person is sacred and inviolable. To give 
 a more lively idea of this complete exemption from local 
 jurisdiction, the fiction of extra-territoriality has been in- 
 vented, by which the minister, though actually in a foreign 
 country, is supposed still to remain within the territory of his 
 own sovereign.' To the same effect is the passage cited from 
 Grotius, in which he uses the words ' quasi extra territorium ; ' 
 meaning only that such is the sacredness of the person of an 
 ambassador, and his immunity from the civil and criminal 
 law of the country in which he resides, that he is to be re- 
 garded as residing within his own country. It may be ob- 
 served that subjection to the civil and criminal law does not 
 depend upon domicil. A foreigner who comes to this country 
 is subject to the civil and criminal law of England, though he 
 may not be domiciled here ; and as the obligation of those 
 laws upon him does not depend on his domicil, so the immu- 
 nity from them does not show that he is not domiciled in this 
 country. It seems to me that the argument has wholly failed 
 to establish that the testator ceased to be domiciled in Eng- 
 land, because he enjoyed those immunities." And substan- 
 tially in these views the whole court concurred. 
 
 § 320. Id. — The true principle seems to be that one who 
 is sent abroad as ambassador or attacks by the government in 
 whose territory he is domiciled, does not thereby acquire a 
 domicil in the country to which he is sent, because his resi- 
 dence there is referable to his oflScial duties, and from it can 
 be drawn no inference of animus manendi. It is temporary 
 and for a special purpose. He is subject to recall at any time 
 at the pleasure of the government in whose service he is, and 
 he is presumed to intend to return whenever his service is at 
 an end. He therefore stands in the same position as the 
 holder of any other temporary or revocable office. Donellus^ 
 says : " Quisquis temporis causa alicubi commoratur et con- 
 sistit, ibi domicilium non habet. Veluti, si qui legationis 
 causa aliquo venerint, et dum legatione funguntur, ibi habi- 
 tationem conduxerint." And the language of John Voet ^ is 
 to the same effect. 
 
 1 De Jure Civrli, 1. 17, o. 12, p. ' Ad Pand. 1. 5, t. 1, no. 98. 
 978 b, no. 50. 
 
 27 41T 
 
§ 321.] THE LAW OP DOMICIL. [CHAP. XTII. 
 
 Lord Penzance remarked, during the argument in Sharpe v. 
 Crispin : ^ " I take it to be clear that a person domiciled in 
 England, and going abroad either as an ambassador or consul, 
 would not in any way, by the fact of his residence in a foreign 
 country, alter his domicil. That residence would be referred 
 to his official duties, and would have no influence on the 
 question of domicil." 
 
 Paige, J., in Crawford v. Wilson,* says: " Domicil, it is said, 
 means something more than residence ; that it includes resi- 
 dence with an intention to remain in a particular place. Thus 
 a foreign minister has not his domicil where he resides. . . . 
 The residence of a foreign minister at the court to which he 
 is accredited is only a temporary residence. He is not there 
 animo manendi ;" and again: "A foreign minister actually 
 resides and is personally present at the court to which he is 
 accredited, but his legal residence or inhabitancy and domicil 
 are in his own country. His residence at the foreign court is 
 only a temporary residence. He is there for a particular 
 purpose." 
 
 § 321. Can an Ambassador acquire a Domicil in the Country 
 to which he is accredited ? — But can one who is sent by the 
 country of his domicil as ambassador or attachS acquire a 
 domicil in the country to which he is sent during his term of 
 service ? The answer depends upon our acceptance of the 
 one or the other of the theories above stated. If the extra- 
 territorial theory is the true one, he cannot. If, on the other 
 hand, the theory of intention is accepted, he probably can. 
 It has been suggested that the acquisition of such domicil 
 might perhaps be deemed incompatible with his public duties.^ 
 But why incompatible? and particularly, why more incom- 
 patible to acquire a domicil in the country where he serves 
 than to retain one already acquired there before his appoint- 
 ment? The language of Bramwell and Wilde, BB., above 
 quoted, seems conclusively to answer this doubt. 
 
 In Heath v. Sampson,^ a Sardinian who had long resided in 
 
 ^ L. R. 1 p. & D. 611, 613. incline to the opinion that an ambas- 
 
 1 ti^^^}\ ^°*' ^'"^°'^ ™*y acquire a domicil at the 
 
 1 Westlake, Pnv. Int. L. 2(1 ed. place of his service. See mpra, % 317, 
 
 § 257. This, however, is a mere sug- note 4. 
 
 gestion. The learned writer appears to 2 14 Beav 441 
 
 418 
 
§ 323.] DOMICIL OF CONSUL. [CHAP. XVII. 
 
 England was appointed, by the Sardinian Government, min- 
 ister plenipotentiary and envoy extraordinary to England. 
 There were circumstances tending to show the acquisition 
 of a domicil in England before his appointment, and there 
 were circumstances, occurring during his diplomatic service, 
 strongly tending to show his intention to remain there per- 
 manently in any event. Sir John Romilly, M. R., without 
 delivering any opinion, held his domicil to be English. Al- 
 though it is impossible, in the absence of any intimation of 
 the ground upon which the decision was made, to say whether 
 it is an authority to the effect that one who, being of foreign 
 origin, is already domiciled in a country and is appointed an 
 ambassador to that country, does not thereby become divested 
 of this acquired domicil, or that an ambassador may acquire 
 domicil in the country to which he is accredited; yet in 
 either view the decision is completely destructive of the 
 extra-territorial theory. 
 
 § 322. Id. — A third case might happen ; namely, a person 
 domiciled in one country might be appointed by the govern- 
 ment of another country to represent it in a third. Upon ac- 
 cepting the appointment and entering upon the discharge of his 
 new functions, would his domicil be thereby changed ? This 
 case is to be determined upon the same principle as the other. 
 
 (b) Consuls. 
 
 § 323. A Person does not change his Domicil by Residence 
 abroad in the Consular Service of his Country. — There is little 
 difiSculty with regard . to consuls. There seems to be no good 
 reason why any rule should be applied to them different from 
 those applied to other public officers. Usually their residence 
 in a foreign country is referable to their public duties, and 
 they do not thereby acquire a domicil there ; ^ nor is any infer- 
 ence of domicil or of animus manendi to be drawn from such 
 
 1 TJdny v. Udny, L. R. 1 Sch. App. 3 How. (Miss.) 360 ; Henry, For. Law, 
 
 441 ; Sharpe v. Crispin, L. R. 1 P. & p. 204 et seq. ; Westlake, Priv. Int. L. 
 
 D. 611 ; Niboyet v. Niboyet, L. R. 4 P. 1st ed. no. 47 ; Id. 2d ed. § 257 ; 
 
 D. 1 ; Maltass v. Maltass, 1 Robertson Dicey, Dom. p. 138 ; Wharton, Confl. 
 
 Eccl. 67 ; Gont v. Zimmerman, 5 Notes of L. § 49. 
 of Cases, 440; Wooldridge v. Wilkins, 
 
 419 
 
I 324.J THE LAW OF DOMICIL. [CHAP. XVII. 
 
 residence, even though long continued. Henry ^ cites a case 
 from the Nieuw Nederland's Advys Boek, in which a Dutch 
 consul at Smyrna was held to have retained his domicil at 
 Amsterdam. The language of the opinion is directly in point. 
 It was there said, " that since A. was born at Amsterdam, and 
 only residing at Smyrna in the service of Government, he must 
 be considered as still residing at Amsterdam ; since it is clear 
 in law, that by residence in a foreign country under a com- 
 mission, especially when this is only for some years and not 
 perpetual, no domicil is contracted ; the reason of which is 
 evident, namely, that to the constituting of a fixed domicil, 
 it is not sufficient that a person resides in this or that place, 
 but that he must have the intention at the time of making it 
 his fixed and permanent abode during his life ; . . . and even 
 were a man to remain ten or more years in a place, still he 
 cannot be said to have had there his fixed domicil, so long as 
 it was considered by him as a temporary residence (mansio 
 temporaria}, as by example in a commission; whence it fol- 
 lows that the marriage celebrated by A. at Smyrna, the place 
 of his residence, so far as concerns the commxmity of profit 
 and loss during this marriage, must be considered as having 
 taken place at Amsterdam." 
 
 § 323 a. Nor by a Consular Appointment in his own Country in 
 the Service of a Foreign Government. — But, on the other hand, 
 a person who is already domiciled in a country does not lose 
 such domicil by being appointed to a consular office there by 
 the government of another country .^ " Residence in a foreign 
 country as a consular officer gives rise to no inference of a 
 domicil in that country. But if already there domiciled and 
 resident, the acceptance of an office in the consular service of 
 another country does nothing to destroy the domicil." ^ 
 
 § 324. A Consul may acquire a Domicil in the Foreign Country 
 in which he serves. — There seems to be no difficulty in holding 
 that one who goes to a foreign country as consul may acquire 
 a domicil there if he forms the necessary animus manendi. 
 The difficulty in such case would lie in the proof of intention. 
 
 2 For. Law, p. 204. 2d ed. § 258; Dicey, Dom. pp. 138, 139; 
 
 1 Sharpe o. Crispin, supra; West- Wharton, Confl. of li. § 49. 
 lake, Priv. Int. L. 1st ed. no. 47 ; Id. ^ Lord Penzance in Sharpe ■!). Crispin. 
 420 
 
§ 324.J DOMICIL OF CONSUL. [CHAP, XVII. 
 
 While the party remains in the consular service, residence, 
 however long continued, would go for nothing. But if the 
 animus manendi be made clearly to appear by acts and dec- 
 larations, there seems to be no good reason for holding that 
 a change would not take place.^ In opposition to this view 
 has been suggested the duty of consuls as well as ambassa- 
 dors " to act for the interests, and remain identified with the 
 feelings, of the country by which they are accredited." ^ 
 Little weight, however, can be attached to this suggestion in 
 view of the constant practice among almost all nations of 
 selecting for consular office persons already domiciled in, 
 and subjects of the countries in which they are appointed to 
 serve. 
 
 1 Westlake, Priv. Int. L. § 257 ; upon considerations which do not apply 
 
 Wharton, Confl. of L. § 49. It is said to ordinary eases of domicil. 
 
 that by engaging in trade in the coun- ^ Westlake, Priv. Int. L. 1st ed. no. 
 
 try to which he is sent, a consul neces- 47. But in his second e<lition the same 
 
 sarily acquires a domicil there. Whar- learned writer says (§ 257): "There 
 
 ton, loc. cit. and Phillimore, Dom. no. would seem to he nothing to prevent 
 
 140 ; Id. Int. L. vol. iv. no. 170. a person in the consular service from 
 
 This doctrine appears to remount to acquiring a domicil, if so minded, in 
 
 Lord Stowell's decision in The Indian the country where he is employed, it 
 
 Chief, 3 C. Rob. Ad. 22, a case of na- being of frequent occurrence that for- 
 
 tional character in time of war. But as eigners are chosen for such employment 
 
 we have already seen, national character in their respective countries." 
 under the English decisions depends 
 
 421 
 
§ 325.J THE LAW OP DOMICIL. [CHAP. 
 
 XVIII. 
 
 CHAPTER XVIII. 
 
 DOMICIL OP PARTICULAR PERSONS (^Continued'), — STUDENTS. 
 
 § 325. General Statement. — One who goes to a place for 
 the sole purpose of attending a school or university, intending 
 to remain for a limited time, does not thereby gain a domicil.^ 
 His stay is only temporary, and is to be treated like any other 
 temporary residence. It sometimes happens, however, that 
 when study is one of the purposes, or even the main purpose, 
 of residence in a place, there exists the ulterior intention of 
 remaining there permanently after the period of study is at 
 an end. In such case there can be no doubt that domicil is 
 acquired.^ Up to this point the case of a student differs in 
 nothing from that of any other person. He does not gain a 
 domicil by intention to reside temporarily, and he does gain 
 a domicil by intention to reside permanently ; and where his 
 intention clearly appears, the fact of his studentship is of no 
 significance whatever. But when we come to .consider resi- 
 dence as a proof of animus manendi, we are met by the fact 
 that the residence of a student is usually temporary ; and as 
 hence results the presumption that the residence of the par- 
 ticular student is also temporary, it is necessary, in order to 
 
 1 Sanders v. Getohell, 76 Me. 158 ; Int. L. 1st ed. no. 51 ; "Whai-ton, Confl. 
 Hart V. Lindsey, 17 N. H. 235 ; State of L. § 48. See also Farlee v. Eunk, 
 V. Daniels, 44 id. 383 ; Granty v. Am- 2 Cong. El. Cas. 87 ; Letcher v. Moore, 
 herst, 7 Mass. 1 ; Putnam v. Johnson, 1 id. 715; Rep. of Jud. Comm. Gush. 
 10 id. 488 ; Opinion of the Judges, 5 Mass. El. Cas. 436 ; Bell v. Kennedy, 
 Met. 587 ; White v. Howard, 52 Barb. L. R. 1 Sch. App. 307, and The Ben- 
 294 ; Matter of Eice, 7 Daly, 22 ; Fry's edict, Spinks Prize Cas. 314. 
 Election Case, 71 Pa. St. 302 ; ite ^ ganders v. Getchell, supra ; Put- 
 Lower Oxford Township Election, 11 nam w. Johnson, supra; Opinion of the 
 Phila. 641 ; Kelley's Ex'r v. GaiTett's Judges, supra; i?e Lower Oxford Town- 
 F.x'rs, 67 Ala. 304 ; Dale v. Irwin, 78 ship Election, mpra ; Dale v. Irwin, 
 111. 160 ; Vanderpoel i). O'Hanlon, 53 supra; Vanderpoel v. O'Hanlon ; Wal- 
 lowa, 246 ; Wallace's Case, Robertson's lace's Case, supra ; Westlake, Priv. 
 Pers. Sue. p. 201, note (k) ; Philli- Int. L. Ist ed. no. 51 ; Cooley's Const, 
 more, Dom. no. 98 ; Westlake, Priy. Lim. 1st ed. 600. 
 422 
 
§ 327.] DOMICIL OP STUDENTS. [CHAP. XVIII. 
 
 show the acquisition of domicil in the particular case, to over- 
 come this presumption by suitable evidence.* This is the 
 ratio of all the cases in which the question of the domicil of 
 students has been considered. 
 
 § 326. Roman Law. — The Roman law furnishes us several 
 texts with regard to the domicil of students. In one of them 
 (contained in the Code) it is laid down that those who for the 
 sake of study dwell in any place are not considered to liave domi- 
 cil there, unless, ten years having been completed, they shall 
 have set up a seat for themselves in that place ; and the same 
 principle is extended to a father who frequents a place on ac- 
 count of his son's studying there. " Nee ipsi, qui studiorum 
 causa aliquo loco morantur, domicilium ibi habere creduntur, 
 nisi decem annis transactis eo loco sedes sibi constituerint, 
 secundum epistolam Divi Hadriani; nee pater qui propter 
 filium studentem frequentius ad eum commeat." ^ Ulpian (in 
 a passage handed down in the Digest 2), in commenting upon 
 the Cornelian law, uses the residence of the student as an illus- 
 tration of the distinction between habitatio and domieilium. 
 
 § 327. Id. — It is not entirely clear what effect should be 
 given to the clause relating to the lapse of ten years. Hadrian 
 probably intended by it to furnish a rule of evidence, which 
 was to operate in the absence of other proofs concerning the 
 animus of the student ; and therefore, on the one hand, a 
 domicil might be gained by a student without decennial resi- 
 dence if his intention was made sufficiently apparent by other 
 circumstances, and, on the other, residence for such time would 
 not ipso facto confer domicil if animus revertendi appeared. 
 And this is the view which seems generally to have been held 
 by the commentators, although not without dissent. 
 
 ' Sanders v. Getchell, supra ; Opin- pt. 2, c. 1, nos. 20 and 50, 51 ; Mas- 
 ion of the Judges, si«pra; iJe Lower Ox- eardus, De Probat. concl. 535, no. 14 
 ford Tovmship Election, supra ; Dale et seq. ; Menochius, De Arbit. Jud. 1. 2, 
 V. Irwin, supra. cas. 86, no. 5etseg.; Christenseus, Decis. 
 
 1 Code 10, t. 39, 1. 2. Curise Belgic. vol. v. decis. 34 ; Bur- 
 
 2 Dig. 47, 1. 10, 1. 5, § 5. See supra, gundus, Ad Consuet. Fland. Tract. 2, 
 § 5, note 1. See also on this subject, nos. 33, 34 ; Pothier, Intr. aux Gout. 
 Voet, Ad Pand. 1. 5, t. 1, nos. 94, 96, d'Orl&ns, no. 15; Denizart, verb. Dom. 
 98 ; Donellus, De Jure Civili, 1. 17, u. no. 20 ; Demolombe, Cours de Code 
 12, p. 978 b, no. 50 ; Corvinus, Jur. Napoleon, t. 1, no. 354. 
 
 Rom. 1. 10, t. 39; Zangerus, De Except. 
 
 423 
 
§ 329.] THE LAW OF DOMICIL. [CHAP. XVIH. 
 
 The subject will be further considered when we come to dis- 
 cuss time as a criterion of intention.^ 
 
 § 328. Domicil of Student as viewed in this Country. — In 
 this country! the subject has been discussed in a number of 
 cases, usually with reference to the elective franchise. Dr. 
 Wharton 2 appears to intimate that for this reason the results 
 reached are the less valuable as authorities. But in all of the 
 States in which these reported discussions have taken place, 
 the right to vote is put upon the ground of domicil, and pre- 
 cisely the same principles are applied as in other cases of 
 domicil. 
 
 § 329. Id. Massachusetts Cases. Opinion of the Judges. — 
 The whole subject was gone over thoroughly and accurately by 
 the justices of the Supreme Court of Massachusetts,^ in an opin- 
 ion rendered by them to the House of Representatives of that 
 State in answer to the following question : " Is a residence at 
 a public institution, in any town in this Commonwealth, for 
 the sole purpose of obtaining an education, a residence within 
 the meaning of the Constitution, which gives a person, who has 
 his means of support from another place, either within or witli- 
 out this Commonwealth, a right to vote, or subjects him to the 
 liability to pay taxes in such town ?" Much that is contained 
 in the opinion relates to the indicia of domicil, and would be 
 properly considered hereafter in the part of this work treating 
 of that subject ; but as all that was said has direct bearing 
 upon the question of the domicil of students, the opinion is 
 here given at length : " We feel considerable difficulty in giving 
 a simple or direct answer to the question proposed, because 
 neither of the circumstances stated constitutes a test of a per- 
 son's right to vote, or liability to be taxed; nor are they very 
 decisive circumstances bearing upon the question. On the 
 contrary, a person may, in our opinion, reside at a public in- 
 stitution for the sole purpose of obtaining an education, and 
 may have his means of support from another place, and yet 
 he will, or will not, have a riglit to vote in the town where 
 
 1 See infra, §§ 383-385. The Benedict, supra, and Wallace's Case, 
 
 ^ There can hardly be said to have supra, may, however, be referred to. 
 
 been any discussion of the subject in the 2 Confl. of L. § 48. 
 
 British courts. Bell r. Kennedy, sitpra, l 5 Met. 587. 
 
 424 
 
§ 330.] DOMICIL OP STUDENTS. [CHAP. .XVIII. 
 
 such institution is established, according to circumstances not 
 stated in the case on which the question is proposed. By the 
 Constitution it is declared, that, to remove all doubts concern- 
 ing the meaning of the word ' inhabitant,' every person shall 
 be considered an inhabitant, for the purpose of electing and 
 being elected into any office or place within this State, in that 
 town, district, or plantation, where he dwelleth or hath his 
 home. In the third article of the amendments of the Consti- 
 tution, made by the Convention of 1820, the qualification of 
 inhabitancy is somewhat differently expressed. Tlie riglit 
 of voting is conferred on the citizen who has resided within 
 this Commonwealth, and who has resided within the town or 
 district, etc. We consider these descriptions, though differ- 
 ing in terms, as identical in meaning, and that 'inhabitant,' 
 mentioned in the original Constitution, and ' one who has re- 
 sided,' as expressed in the amendments, designate the same 
 person. And both of these expressions, as used in the Consti- 
 tution and amendment, are equivalent to the term ' domicil,' and 
 therefore the right of voting is confined to the place where one 
 has his domicil, his home or place of abode. 
 
 § 330. Id. id. id. — " The question, therefore, whether one re- 
 siding at a place where there is a public literary institution, for 
 the purposes of education, and who is in other respects quali- 
 fied by the Constitution to vote, has a right to vote there, will 
 depend on the question whether he has a domicil there. His 
 residence will not give him a right to vote there, if he has a 
 domicil elsewhere ; nor will his connection with a public insti- 
 tution, solely for the purposes of education, preclude him from 
 so voting, being otherwise qualified, if his domicil is there. 
 
 " The question, what place is any person's domicil, or place 
 of abode, is a question of fact. It is in most cases easily de- 
 termined by a few decisive facts ; but cases may be readily 
 conceived where the circumstances tending to fix the domicil 
 are so nearly balanced that a slight circumstance will turn 
 the scale. In some cases, where the facts show a more or less 
 frequent or continued residence in two places, either of which 
 would be conclusively considered the person's place of domicil 
 but for the circumstances attending the other, themtent of the 
 party to consider the one or the other his domicil will deter- 
 
 425 
 
§ 331.] THE LAW OP DOMICIL. [CHAP. XVIII, 
 
 mine it. One rule is, that the fact and intent must concur. 
 Certain maxims on this subject we consider to be well settled, 
 which afford some aid in ascertaining one's domicil. These 
 are, that every person has a domicil somewhere ; and no per- 
 son can have more than one domicil at the same time, for one 
 and the same purpose. It follows, from these maxims, that a 
 man retains his domicil of origin till he changes it by acquir- 
 ing another ; and so each successive domicil continues until 
 changed by acquiring another. And it is equally obvious that 
 the acquisition of a new domicil does, at the same instant, 
 terminate the preceding one. 
 
 §331. Id. id. id. — " In applying these rules to the proposed 
 question, we take it for granted that it was intended to apply 
 to a case where the student has his domicil of origin at a 
 place other than the town where the institution is situated. 
 In that case we are of opinion that his going to a public insti- 
 tution, and residing there solely for the purpose of education, 
 would not, of itself, give him a right to vote there, because it 
 would not necessarily change his domicil ; but in such case 
 his right to vote at that place would depend upon all the cir- 
 cumstances connected with such residence. If he has a father 
 living ; if he still remains a member of his father's family ; if 
 he returns to pass his vacations ; if he is maintained and sup- 
 ported by his father, — these are strong circumstances, repelling 
 the presumption of a change of domicil. So, if he have nO 
 father living ; if he have a dwelling-house of his own, or real 
 estate, of which he retains the occupation ; if he have a 
 mother or other connections, with whom he has before been 
 accustomed to reside, and to whose family he returns in vaca- 
 tions ; if he describes himself of such place, and otherwise 
 manifests his intent to continue his domicil there, — these 
 are all circumstances tending to prove that his domicil is 
 not changed. 
 
 " But if, having a father or mother, they should remove to 
 the town where the college is situated, and he should still 
 remain a member of the family of the parent ; or if, having 
 no parent, or being separated from his father's family, not 
 being maintained or supported by him ; or if he has a family 
 of his own, and removes with them to such town ; or by pur- 
 426 
 
§ 333.] DOMICIL OP STUDENTS. [CHAP. XVIII. 
 
 chase or lease takes up his permanent abode there, without 
 intending to return to his former domicil ; if he depend on 
 his own property, income, or industry for his support, — these 
 are circumstances, more or less conclusive, to show a change 
 of domicil, and the acquisition of a domicil in the town where 
 the college is situated. In general, it may be said that an 
 intent to change one's domicil and place of abode is not so 
 readily presumed from a residence at a public institution for 
 the purposes of education, for a given length of time, as it 
 would be from a like removal from one town to another, and 
 residing there for the ordinary purposes of life ; and therefore 
 stronger facts and circumstances must concur to establish the 
 proof of change of domicil in the one case than in the other. 
 But where the proofs of change of domicil, drawn from the 
 various sources already indicated, are such as to overcome the 
 presumption of the continuance of the prior domicil, such pre- 
 ponderance of proof, concurring with an actual residence of 
 the student in the town where the public institution is situated, 
 will be sufficient to establish his domicil, and give him a right 
 to vote in that town, with other municipal rights and privi- 
 leges. And as liability to taxation for personal property de- 
 pends on domicil, he will also be subject to taxation for his 
 poll and general personal property, and to all other municipal 
 duties in the same town." 
 
 § 332. Id. id. Granby v. Amherst. — In an early Massa- 
 chusetts settlement case ^ it was held that one who being 
 domiciled in B. became a student of Dartmouth College, and 
 so continued for four years, passing his vacations in B., and 
 after graduation remaining there to reside, did not lose his 
 domicil in B. during his four years' absence at college. Par- 
 sons, C. J., remarking, " His absence was occasional, and for 
 a particular purpose," and therefore " there was no change of 
 domicil." 
 
 § 833. Id. id. In Putnam v. Johnson,^ a student of full 
 age, upon a charity foundation in Andover Seminary, who had 
 severed himself from his father's family, and between the time 
 of his leaving home and the time of coming to Andover had 
 
 1 Granby v. Amherst, 7 Mass. 1. i 10 id. 488. 
 
 427 
 
I 335.] THE LAW OP DOMICIL. [CHAP. XVHI. 
 
 resided in another town, S., where he had been taxed and had 
 voted, there being no evidence as to his intention subsequent 
 to graduation, was held to be domiciled and entitled to vote 
 at Andover. It was in this case that Parker, J., made his 
 celebrated qualification of Vattel's definition, and laid down 
 doctrine which would clearly not be applicable to cases of 
 national or quasi-national domicil. It is probable that Put- 
 nam V. Johnson will not stand as an authority in any cases 
 other than those of municipal domicil. 
 
 § 334. Id. Fry's Election Case^ arose upon a case stated, in 
 which it was admitted that certain students whose right to vote 
 was in question, were citizens of Pennsylvania ; that they claimed 
 that their residence was in Muhlenberg College, where they 
 had lived from one to three years ; that they came to the town 
 where the college was located for no other purpose than to 
 receive a collegiate education, but intended to leave after 
 graduating ; that they were assessed and paid taxes before the 
 election. A clear and able opinion was delivered by Agnew, 
 J., in which, after demonstrating the identity of domicil and 
 residence within the meaning of the constitutional provision 
 relating to the qualifications of voters, and discussing and 
 defining domicil, he said : " The stated case expressly declares 
 that the students referred to in it came to AUentown from 
 other counties, for no other purpose than to receive a collegiate 
 education, but intended to leave after graduating. It is evident 
 that the college was not their true and permanent home ; their 
 stay there was not to be indefinite, as the place of a fixed 
 abode, until future circumstances should induce them to re- 
 move. Their purpose was indefinite ^ and temporary, and 
 when accomplished they intended to leave. They retained their 
 original domicil, for the facts stated show that they never 
 lost it. On this point the authorities are in entire accord." 
 
 § 335. Id. id. — After citing authorities, and further dis- 
 cussing some of the general principles of domicil, he proceeded 
 to say : " The principles enable us now to dispose of the first 
 of the two classes into which the stated case divides these 
 students, viz. : ' Those who support themselves, or are assisted 
 pecuniarily by persons other than their parents, are emanci- 
 
 1 71 Pa. St. 302. 2 So in the report. Definite (?). 
 
 428 
 
§ 336.] DOMICIL OF STUDENTS. [CHAP. XVIII. 
 
 pated from their fathers' families ; have left the home of their 
 parents, and never intend to return and make it a permanent 
 abode.' Having, as the case states, come to Allentown for no 
 other purpose than to receive a collegiate education, and in- 
 tending to leave after graduating, they have not lost their 
 home domicil, and could vote there on returning to it, though 
 they should not re-enter their father's house. Emancipation 
 from their father's family, and independent support, and the 
 leaving of the home belonging to their parents, have not for- 
 feited their own domicil. Their father's house is ijot neces- 
 sarily their home, but the place is where it is. Though not in 
 the bosom of that family, the place of their residence is not 
 lost to them imtil they have voluntarily changed it and found 
 a new home. Upon the terms of the stated case, it cannot be 
 said they have abandoned their original home, and actually 
 obtained another. The second class needs no comment. They 
 are those students ' who are supported by their parents, visit 
 their parents' home during vacation, and may or may not re- 
 turn there after graduating.' It is clear as to both classes, 
 the college is not their home. They are not members of the 
 community among whom they sojourn. They have no com- 
 mon interest ; do not intend to live with, or to cast their lot 
 among them. They have no proper motive to interfere in 
 their local affairs. On no proper principle of a true residence 
 should the student vote to-day and fasten on the community 
 ofi&cers whom the majority do not desire, then graduate to- 
 morrow and be gone." 
 
 § 336. Id. Sanders v. GetoheU,^ is a recent case decided 
 by the Supreme Court of Maine, in which Peters, C. J., said : 
 " Another question is to be considered, and that is. Under what 
 circumstances does a student at a seminary of learning acquire 
 a voting residence in the place where such seminary is sit- 
 uated ? The constitutional interdiction is in these terms : ' The 
 residence of a student at any seminary of learning shall not 
 entitle him to the right of suffrage in the town where such 
 seminary is situated.' It is clear enough that residing in a 
 place merely as a student does not confer the franchise. Still, 
 a student may obtain a voting residence if other conditions 
 
 I 76 Me. 158. 
 
 429 
 
§ 337. j THE LAW OP DOMICIL. [CHAP. XVIII. 
 
 exist sufficient to create it. Bodily presence in a place coupled 
 with an intention to make such place a home will establish a 
 domicil or residence. But the intention to remain only so 
 long as a student, or only because a student, is not sufficient. 
 The intention must be not to make the place a home tem- 
 porarily, not a mere student's home, a home while a student, 
 but to make an actual, real, permanent home there ; such a 
 real and permanent home there as he might have elsewhere. 
 The intention must not be conditioned upon or limited to the 
 duration of the academical course. To constitute a permanent 
 residence, the intention must be to remain for an indefinite 
 period, regardless of the length of time the student expects to 
 remain at the college. He gets no residence because a student, 
 but being a student does not prevent his getting a residence 
 otherwise. The presumption is against the student's right to 
 vote, if he comes to college from out of town. Calling it his 
 residence, does not make it so. He may have no right to so 
 regard it. Believing the place to be his home is not enough. 
 Swearing that it is his home must not be regarded as sufficient, 
 if the facts are averse to it. Deception or misconstruction 
 should not be encouraged. The constitutional provision should 
 be respected. Each case must depend largely upon its peculiar 
 facts. The question is not always of easy solution. One dif- 
 ficulty is this, that all the visible facts may be apparently 
 consistent with either theory, — that of a temporary or a per- 
 manent home." 
 
 § 337. Id. id. — The facts as stated by the court were as fol- 
 lows : " The plaintiff was thirty-two years old ; left his father's 
 house in Patten, in this State, when nineteen ; never afterwards 
 received parental support or was under parental control; visited 
 home afterwards only occasionally and briefly ; his father's 
 home was, soon after his leaving, changed from Patten to 
 other places ; at the age of nineteen he was in business for 
 himself in Poxboro, Massachusetts ; after coming of age he 
 was taxed and voted for several years in that place ; in 1875, 
 at the age of twenty-four, he entered a classical school at 
 Waterville, and in 1878 entered college there, graduating in 
 1882 ; in 1879 he formed the purpose of making Waterville 
 his home for an indefinite period of time, and was taxed and 
 430 
 
§ 340.] DOMICIL OP STUDENTS. [CHAP. XTIII. 
 
 voted there from that date until 1882, when, against his pro- 
 test, his name was by the defendants omitted from the lists ; 
 he has ever since claimed and regarded Waterville as his 
 home, a friend's house being opqp to him when there, though 
 possessing no property there of consequence, and entering a 
 theological institute at Newton, Massachusetts, in 1882, where 
 he has since remained as a student." The act complained of 
 was in 1882. 
 
 § 338. Id. Many of the cases above referred to were cases 
 of municipal domicil ; but their principles are for the most part 
 general, and the subject has been discussed and decided the 
 same way in several cases in which jMasi-national as well as 
 municipal domicil was involved.^ 
 
 § 339. Id. state Constitutions. — Many of the State Constitu- 
 tions contain provisions relating to the residence oi, inter alios, 
 students as a qualification for voting. Thus, the Constitution 
 of Pennsylvania ^ contains the following : " For the purpose of 
 voting no person shall be deemed to have gained a residence 
 by reason of his presence, or lost it by reason of his absence 
 . . . while a student of any institution of learning." That of 
 Maine has been given above, and those of many other States 
 are similar. These provisions, however, are merely declara- 
 tory of the law as already understood, and introduce no new 
 rule.2 In Rice's case,^ the following statutory provision, " No 
 person shall be deemed to have lost or acquired a residence 
 by being a student in a college, academy, or seminary of learn- 
 ing," was held to be " but a recognition or affirmance of the 
 rule at common law." 
 
 § 340. Presumption in favor of Acquisition of Domicil by Stu- 
 dent who remains after Completion of his Studies. — If a student 
 after completing his education remains at the place where he 
 
 1 See particularly Sanders o. Getch- Minnesota (1857), art. 7, see. 1 ; Mis- 
 ell, svpra; Opinion of the Judges, m- souri (1875), art. 8, sec. 2 ; New York 
 pra; ^ Lower Oxford Township Elec- (1846), art. 2, sec. 3; Oregon (1857), 
 tion, supra. art. 2, sec. 2. 
 
 1 Art. 8, sec. 13. See also the Con- 2 gee similar provision with ref- 
 
 stitutions of California (1849), art. 2, erence to civil and military officers, 
 
 see. 4 ; Colorado (1876), art. 7, sec. 4 ; sitpra, § 316. 
 
 Kansas, Amendment to art. 5, sec. 3, ' Matter of Rice, 7 Daly (N. Y. 
 
 ratified 1864 ; Maine (1820), art. 2, sec. C. P.), 22. The New York Constitu- 
 
 1 ; Michigan (1850), art. 7, sec. 5 ; tion also contains a similar provision. 
 
 431 
 
§ 340.J 
 
 THE LAW OP DOMICIL. 
 
 [chap. XVIII. 
 
 has been attending an institution of learning, his continued 
 residence there is strong evidence of domicil, the usual pre- 
 sumption of animus revertendi being overthrown by his re- 
 maining after the time when his return would ordinarily be 
 expected.! The temporary cause of sojourn having ceased, 
 the fact of remaining, according to Pothier,^ raises a strong 
 presumption of intention to remain permanently. 
 
 1 This is clear on principle apart from 
 authority ; but see Wallace's case, su- 
 pra ; Pothier (next note), and Westlake, 
 Priv. Int. L. 1st ed. no. 51. See also 
 the same principle applied to public 
 officers and refugees, supra, §§ 285, 315. 
 In Wallace's case the Lord Ordinary 
 (Cringletie) said : "Eesidence merely for 
 education may be questionable how far 
 it constitutes a. domicil to govern suc- 
 cession. But when education is over, 
 when a man attains majority, and still 
 
 432 
 
 resides in England, making only short 
 visits to Scotland ; having no house of 
 his own in which he lives in Scotland, 
 and dies in England in a house of his 
 own, — the Lord Ordinary confesses that 
 he thinks that there is little room for 
 doubting what must be held to be his 
 domicil." 
 
 ^ Intr. aux Cout. d'Orleans, no. 15. 
 This he understands to be the principle 
 of the Ordinance of Hadrian, supra, 
 §326. 
 
§ 342.] DOMICIL OF FOREIGNERS IN FRANCE. [CHAP. XIX. 
 
 CHAPTER XIX. 
 
 DOMICIL IN PARTICULAR PLACES. 
 
 (a) Domicil of Foreigners in France. 
 
 § 341. Art. 13 of the French Code Civil. — The question has 
 arisen, Can a foreigner without authorization establish his 
 domicil in a country whose laws provide for authorization by 
 the Government of that country to establish domicil there ? 
 And upon this question there has been considerable discussion 
 and difference of opinion. It has particularly arisen under the 
 French law, in the construction and application of Art. 13 
 of the Code Civil, which is as follows : " The foreigner wlio 
 shall have been admitted by the Government to establish 
 his domicil in Trance, shall enjoy therfe all civil rights so long 
 as he shall continue to reside there." 
 
 Two remarks must be premised : (1) that prior to the 
 adoption of the French Code the right of a foreigner to ac- 
 quire in France a domicil carrying with it all the incidents 
 which usually belong to international domicil was universally 
 recognized ; ^ and (2) that there is not in the French Code, 
 or in any of the French positive laws, any express provision 
 which prohibits a foreigner from acquiring a domicil in that 
 country without authorization. Whatever is found in the 
 Code upon the subject is found by implication, and mainly, 
 according to most of the authorities, in the article above 
 quoted. 
 
 § 342. The CifBculty attending the Subject largely one of 
 Method. — If, therefore, the question is considered by what ap- 
 pears to be the more logical method, namely, by first inquiring 
 whether a foreigner may establish a domicil in France without 
 authorization, leaving the legal consequences of such domicil 
 
 1 See Merlin, Kepertoire, verb. Divorce, § 10, no. 4 ; verh. Domicil, § 13. 
 
 28 433 
 
S 343.] THE LAW OP DOMICIL. [CHAP. XIX. 
 
 for subsequent determination, there would seem to be little or 
 no doubt that an affirmative answer should be given,— the 
 ancient law on the subject having been as we have seen it, and 
 there existing in the French law no prohibition against the 
 establishment in that country of a domicil by a foreigner in 
 the ordinary way, facto et animo. But unfortunately the 
 French jurists have followed the very illogical method of 
 considering whether a person can, without authorization, ac- 
 quire a domicil for this or that particular purpose, e.g., domicil 
 for the purpose of succession, etc. ; thereby confusing in a 
 single inquiry both the constitution and the legal effects of 
 domicil. It is to this method of inquiry and the confusion of 
 ideas consequent thereupon that the great perplexity and con- 
 flict of opinion which have apparently surrounded the subject 
 are mainly due. 
 
 It is not for an American text-writer, even if the scope of 
 this work permitted a sufficiently extended examination of the 
 subject, to attempt to reconcile the conflicting views of French 
 jurists concerning French law ; it will be sufficient to point 
 out briefly and generally some of the, different opinions which 
 have been held by the courts and text-writers of that country, 
 and then to consider the views held by the courts of this 
 country and Great Britain. Apology for occupying even so 
 much space as is here devoted to the subject is found in the 
 fact that already a number of cases have arisen in the English 
 and American courts in which have been discussed the true 
 construction and legal effect of Art. 13, and the further fact 
 that, by reason of the large and increasing number of English- 
 men and Americans resident in France, the Anglo-American 
 courts are likely to have frequent occasion to turn their atten- 
 tion again and again to the subject.^ 
 
 § 348. Various Opinions held in France : (l) that a Foreigneir 
 cannot establish a Domicil in that Country even with Authoriza- 
 
 1 In spite of the large number of authorization, and only four were natural- 
 Englishmen and Americans resident in ized. The necessity of government au- 
 Frauce, it is well known that few of them thorization to establish domicil, and the 
 avail themselves either of naturalization effect of its absence are therefore live 
 or of authorization to establish domicil. questions, which are likely to come be- 
 From 1851 to 1861 in that country only fore our courts frequently, 
 ninety-two Englishmen obtained such 
 
 434 
 
§ 344.J DOMICIL OF FOREIGNERS IN FRANCE. [CHAP. XIX. 
 
 tion. — In France, according to Demolombe,^ three general 
 opinions have been maintained : First, that a foreigner cannot 
 in any case establish a domicil in that country, either with or 
 without authorization. This view, which is clearly inadmis- 
 sible, inasmuch as it is equally opposed to all international 
 change of domicil, seems to be based upon the theory that a 
 foreigner, no matter how apparently permanent may be his 
 establishment in France, must be presumed always to intend 
 sooner or later to return to his native country, unless he has 
 actually and formally become a French citizen by naturaliza- 
 tion. We have already seen that there is a strong presump- 
 tion against an international change of domicil, and this is 
 based mainly upon the well-known habits and feelings of men, 
 inducing them generally, in spite of prolonged residence and 
 apparently permanent interests in foreign lands, to retain tlie 
 animus revertendi ; but to carry it to the extent of conclusive- 
 ness is to ignore the equally well-known fact that in modern 
 times very many persons do, without seeking naturalization, 
 voluntarily establish themselves in foreign countries without 
 the slightest intention or hope of return. 
 
 Those who hold this extreme doctrine are probably led to 
 it in part by a consideration of the very serious consequences 
 attending the establishment of a Frenchman in a foreign land 
 sans esprit de retour? 
 
 § 344. Id. (2) that a Foreigner may establish a Domicil in 
 France only with Authorization. — The second opinion is, that 
 a veritable domicil cannot be established by a foreigner in 
 France without authorization. It has the sanction of many 
 distinguished names among the French jurists,^ and is sup- 
 ported by various arguments, among which are the following : 
 
 It is said that, in general, French laws are made for French- 
 men only, and not for foreigners ; and in particular. Art. 102, 
 which defines domicil, contemplates only the domicil of French- 
 men, — " Le domicil de tout Fran§ais, quant a I'exercice 
 
 1 Cours de Code NapoWon, t. 1, no. 1 Demolombe, t. 1, no. 268 ; Duran- 
 268. He there also states some of the ton, t. 1, no. 358 ; Auhry et Eau, t. 1, 
 arguments given above, by which the p. S76; Demangeat, Condition Civile des 
 various views are sought to be main- itr. en France, no. 81 ; Coin De Lisle, 
 tained. Jouiss. et Priv. des Droits Civils, art. 13, 
 
 2 Art. 17, Code Civil. no. 11. 
 
 435 
 
§ 345. J THE LAW OF DOMICIL. [CHAP. XIX. 
 
 de ses droits civils, est au lieu ou il a son principal ^tablisse- 
 ment ; " and the articles which follow, construed with Art. 
 102, provide only for the ascertainment of the domicil of 
 Frenchmen. Furthermore, although a foreigner may establish 
 himself during a long period in France and in a manner ap- 
 parently fixed and stable, yet in truth his residence cannot be 
 said to be permanent, inasmuch as he may at any time be sent 
 out of the country by the Government. Authorization is in- 
 deed revocable, but it, nevertheless, gives a certain security 
 in fact, and is a guaranty which it is natural to seek when a 
 person wishes to permanently establish himself. 
 
 Again, domicil is itself a civil right ; and as Art. 13, which 
 is the only one that treats of the domicil of foreigners, contem- 
 plates authorization as a condition precedent to the enjoyment 
 by them of civil rights, it follows, by necessary implication, 
 that domicil cannot be acquired without it. It is said sub- 
 stantially, further, that as Art. 13 plainly contemplates that 
 without authorization permanent establishment in France shall 
 not carry with it the full legal consequences which follow 
 when authorization is added, and as a supposed domicil, which 
 does not carry with it all the legal consequences of domicil, 
 properly so called, cannot be a true domicil, therefore, while 
 a permanent establishment by a foreigner in France is sus- 
 ceptible of certain consequences, it is not to be construed as a 
 " true " or " veritable " domicil. The distinction is hence 
 taken between a domicil de fait and ' a veritable or legal 
 domicil. 
 
 § 345. Id. ia. And finally, the advocates of this theory 
 fortify their reasoning by what they consider authoritative 
 utterances upon the subject. They cite first the language of 
 the orateur du Tribunat (Gary) in his diseours at the sit- 
 ting of tlie Corps Legislatif of 17 VentSse, An 11 (when 
 Art. 13 was under discussion) which was as follows : " J'ob- 
 serve sur I'article 13 qu'il n'y a eu aucune objection contra 
 la disposition qui veut que I'etranger ne puisse ^tablir son 
 domicile en France, s'il n'y est admis par le gouvernement. 
 C'est une mesure de police et de stiretd autant qu'une dis- 
 position legislative. Le gouvernement s'en servira pour re- 
 pousser le vice et pour accueillir exclusivement les hommes 
 436 
 
§ 346.] DOMICIL OF FOREIGNERS IN FRANCE. [CHAP. SIX. 
 
 vertueux et utiles, ceux qui offriront des garanties h leur 
 famille adoptive." 
 
 They cite also an " Avis du Conseil d'etat " (20 Prairial, An 
 11) as follows : " Le Conseil est d'avis que, dans tous les cas 
 ou un stranger veut s'^tablir en Prance, il est tenu d'obtenir 
 la permission du gouvernement." These authorities they say 
 conclusively establish their position. 
 
 § 346. Id. (3) that a Foreigner may establish a Domicil in 
 France without Authorization. — The third opinion is, that a 
 foreigner may establish a domicil in France without authoriza- 
 tion. This view also has the sanction of a number of distin- 
 guished names among French jurists,^ and is supported as 
 follows. Its advocates rely, first of all (in addition to the jus 
 gentium^, upon the customary law of France as it stood be- 
 fore the adoption of the Code ; and they contend that there is 
 no provision to be found in the Code which ordains, expressly 
 or by fair implication, otherwise. On the contrary. Art. 102 
 expressly fixes domicil " at the place of the principal estab- 
 lishment," and it cannot be doubted that a foreigner may 
 have his " principal establishment " in France. 
 
 If it be said that Art. 102 contemplates only the domicil of 
 the Frangais, it is answered that the history of the prepara- 
 tion and adoption of that article shows that the purpose was 
 to distinguish, not between the domicil of Frenchmen and 
 foreigners, but between political and civil domicil. The origi- 
 nal draft declared the domicil of the citoyen to be " the 
 place where he may exercise his political rights," and that of 
 other individuals, such as unmarried females or widows, who 
 do not enjoy the political rights of the citoyen, to be " the 
 place where the individual has fixed his [or her] princi- 
 pal establishment," the word " citoyen " being manifestly used 
 in the sense of " citoyen actif." The form which was defini- 
 tively adopted after discussion was therefore intended to re- 
 move the distinction (contained in the first draft) between 
 the " citoyen " and " other individuals " so far as concerns the 
 
 1 Merlin, Kepertoire, 5th ed. verb. Demante, t. 1, no. 128 his; Laurent, 
 Dom. § 13 ; Valette sur Proudhon, 1. 1, t. 2, no. 68 ; Brocher, Cours de Droit 
 p. 237 ; Id. Cours de Code Civil, t. 1, Int. Priv. 1. 1, no. 79. 
 p. 69 I Eiohelot, t. 1, p. 312, note 1 ; 
 
 437 
 
§ 347. J THE LAW OP DOMICIL. [CHAP. XIX. 
 
 determination of domicil for civil purposes, and not to draw- 
 any distinction between Frenchmen and foreigners. If the 
 latter had been the intention, some traces of it would have 
 remained in the discussions, which is not the case.^ 
 
 But admitting that Art. 102 relates solely to Frenchmen 
 and not to foreigners, and that no principle can be drawn 
 therefrom even by analogy, we are then thrown back upon 
 Art. 13 as the only one in the Code having any reference to the 
 domicil of the latter ; and this has for its object to determine, 
 not in what cases a foreigner may or may not be domiciled in 
 France, but in what cases he may enjoy there civil rights. If 
 the former object had been intended, it would have been very 
 easy to have expressed it ; and that the latter object was in- 
 tended is shown not only by the text itself, but also by the 
 fact that the article appears under the title treating exclusively 
 of the enjoyment and privation of civil rights.^ 
 
 § 347. Id. id. — With respect to the " Avis du Conseil," 
 relied upon by the advocates of the second opinion, it is said 
 by those who uphold the third : (1) that it was intended 
 solely for the guidance of the Minister of the Interior to 
 whose inquiry it was a reply ; that it was never inserted in 
 the bulletin of laws, or legally published in any manner, and 
 has therefore no binding force upon the tribunals ; and (2) 
 that, although the language of the " Avis " is broad, it must 
 be construed with reference to the subject-matter of the 
 inquiry to which it was a reply, namely, whether under the 
 provisions of Art. 3 of the Constitutional Act of 22 Frimaire, 
 An 8, a foreigner could become a French citizen without hav- 
 ing received authorization to establish his domicil in France. 
 
 The words of the tribune Gary also, it is said, are to be 
 restrained to the subject-matter under discussion at the time 
 they were uttered, namely, the acquisition of civil rights by 
 foreigners, and are not to be taken in their general and unre- 
 stricted sense. 
 
 It was the language of Gary and the " Avis du Conseil 
 d';^tat " which constrained Merlin, in the fourth edition of his 
 Repertoire, in spite of his own evident opinion to the con- 
 
 2 For this argument, see particularly s Liv. 1, t. 1, "De la Jouissance et 
 Brocher, loc. cit. de la Privation des Droits Ciyils " 
 
 488 
 
§ 348. J DOMICIL OF FOREIGNERS IN FRANCE. [CHAP. XIX. 
 
 trary, to adopt the view that authorization is necessary for 
 the establishment of a domicil proprement dit in France 
 by a foreigner. In his fifth edition, however, finding that 
 these authorities were otherwise explicable, he re-wrote his 
 section on this subject, and adopted and enforced by various 
 arguments the opposite view. 
 
 Such are the most prominent arguments advanced by the 
 French text-writers in support of the several principal views 
 on this subject. 
 
 § 348. Decisions of the French Courts. — It is impossible to 
 examine here in detail the decisions of the French courts. 
 They are numerous, and in some instances apparently irrecon- 
 cilable.i It is sufficient to say that in spite of considerable 
 conflict existing in them, there is a large preponderance, par- 
 ticularly among the later cases, in favor of the opinion that 
 a foreigner can acquire a true domicil, or domicil de droit 
 only by virtue of authorization, but that without authorization 
 he may acquire a domicil de fait, carrying with it a part of 
 the legal consequences generally produced by domicil de 
 droit. But this preponderance, although great, cannot be 
 looked upon as conclusively settling the question, inasmuch 
 as in France far less respect is paid to judicial decisions ^ as 
 determinative of the law than in this country and Great 
 
 1 The following may be referred to : 1869, 1. 138; s.o. Dall, I. 294, and Bull. 
 
 Princess Poniatowska, Sir. 1811, II. 446; des Arrets, Cass, Jan. 1869, p. 16 ; Ott, 
 
 s. c. Dall, Ree. Alph. III. 348, and Jour Sir. 1868, II. 193 ; Id. 1869, I. 138 ; 
 
 du Pal. t. 32, 371 ; Berembrook, Sir. 1 822, Bull, des Arrets, Cass. Jan. 1 869 , p. 1 7 ; 
 
 I. 413 ; Da Costa, Sir. 1825-1827, 579 ; Da Gama Machado, reported with Ott ; 
 Thornton, Jour du Pal. Nov. 7, 1826 ; Bergold, Sir. 1871, II 141 ; Craven, 
 s.c. Sir. 1825-1827,442, and Dall, 1827, Sir. 1872, I. 238; Myers, Sir. 1872, 
 
 II. 49; Drivier-Cooper, Sir. 1828,1. 212; II. 313 ; Sussman, Dall, 1872, II. 65 ; 
 Onslow, Dal], 1836, II. 57 ; s. c. Sir. Specht, Dall, 1872, II. 255 ; s. c. Sir. 
 374; D'Abaunza, Sir. 1842, II. 372; 1875, I. 19 ; Morand, Sir; 1873, II. 148; 
 Dremmler, Su-. 1844, II. 617 ; Lloyd, Eieffel, Sir. 1873, II. 265 ; Lethbridge, 
 Sir. 1849, II. 420; Lynch, Sir. 1851, Dall, 1874, I. 465 ; Forgo, Sir. 1875, 
 II. 791 ; Connolly (De Veine v. Rout- I. 409 ; Bull, des AnSts, Cass. May, 
 ledge) Sir. 1852, 289 ; Id. (Browning v. 1875, p. 138 ; Cuirana, Joum. du Droit 
 De Veine) Dall, 1853, I. 217; Breul, Int. Priv. 1882, p. 194. 
 
 Sir. 1854, II. 105 ; Olivarez, Le Droit, ^ Upon a question concerning which 
 
 Oct. 11, 1854; Baron deMecklembourg, there is no explicit provision in the 
 
 Le Droit, July 27, 1856 ; Conim. de Code or other positive legislation, and 
 
 Trevilliers, Sir. 1860, II. 591 ; and 1863, about which there is room for difference 
 
 I. 79; Cazanova, Sir. 1861, I. 800; of opinion, it is generally very difBoult 
 
 Frentzal, Sir. 1861, II. 65 ; Melizet, Sir. to determine what is the French law. 
 
 439 
 
§ 349.] 
 
 THE LAW OF DOMICIL. 
 
 [chap. XIX, 
 
 Britain; and, moreover, it is well known that the French 
 Court of Cassation has at different times changed its opinion 
 in matters of private international law. 
 
 The question therefore naturally arises, whether, when the 
 subject which we have been considering comes before a Brit- 
 ish or an American tribunal for adjudication, it is bound to 
 adopt the view at the time prevailing in the French Court of 
 Cassation, or whether it should take the existing French 
 legislation, and with the best lights available independently 
 construe it. 
 
 § 349. English Cases : Collier v. Rivaz. — In England the 
 subject has been considered in several cases. The first case 
 was Collier v. Rivaz,^ which involved the validity of certain 
 
 The decisions of even the highest courts 
 of that country have not the binding 
 force as precedents which is attributed 
 to like decisions in this country and 
 Great Britain. Indeed, there is a maxim 
 among French lawyers that "decisions 
 are good for those who obtain them ; " 
 and although some respect is paid to 
 them as containing the expression of 
 opinion of learned men, yet the doc- 
 trine and reasoning contained in them 
 are constantly brushed aside and disre- 
 garded by both courts and text-writers 
 in a manner almost incomprehensible to 
 lawyers schooled in the case system of 
 Great Britain and America ; and it thus 
 not unfrequently happens that the opin- 
 ion of a text-writer of acknowledged 
 eminence is more highly regarded as evi- 
 dence of what the law is than a solemn 
 decision of the Court of Cassation. 
 
 1 2 Curteis, 855. Sir Herbert Jen- 
 ner, in the course of his opinion, said : 
 " I cannot think it necessary to go at 
 any length into the facts of the case, 
 because they are all admitted; there is 
 no dispute as to them, the only question 
 is as to the result of them. Now, I 
 cannot but think that aU the facts, 
 with respect to the abandonment of 
 the old domicil and the acquisition of 
 a new one, indicate not only an inten- 
 tion to reside at Brussels and make 
 that place his home, but that the fact 
 and intention concur together, which 
 
 440 
 
 is all that is necessary to constitute a 
 domicil. Length of time will not alone 
 do it ; intention alone will not do ; 
 but the two taken together do con- 
 stitute a change of domicil. No par- 
 ticular time is required, but when the 
 two circumstances of actual residence 
 and intentional residence concur, there 
 it is that a change of domicil is effected. 
 In this case I can have no doubt, from 
 the facts, that this was the deceased's 
 selected place of domicil ; though fi-om 
 1803 to 1814 it was a forced residence, 
 yet from that time (1814) he became 
 habituated to the manners of Brussels 
 and the inhabitants of Brussels, and 
 preferred to make his continental resi- 
 dence in that place to a return to his 
 original domicil. I am, therefore, of 
 opinion, under the whole circumstances 
 of the case, that the testator must be 
 considered to have been domiciled at 
 Brussels at the time of his death. The 
 question, however, remains to be deter- 
 mined, whether these codicils, which 
 are opposed, are executed in such a 
 form as would entitle them to the sanc- 
 tion of the court which has to pro- 
 nounce on the validity of testamentary 
 dispositions in Belgium, in the circum- 
 stances under which they have been ex- 
 ecuted. Because it does not follow 
 that, Mr. Ryan being a domiciled sub- 
 ject of Belgium, he is therefore neces- 
 sarily subject to all the forms which the 
 
§ 349.] DOMICIL OP FOREIGNERS IN FRANCE. [CHAP. XIX. 
 
 codicils to the will of one whose domicil of origin was Irish, 
 but who had subsequently acquired an English domicil, and 
 still later had settled in Belgium, where he continued to reside 
 up to the time of his death, without, however, obtaining 
 authorization. The codicils were executed in accordance 
 with the law of England, and not in accordance with that of 
 Belgium. Sir Herbert Jenner held, (1) that the facts clearly 
 
 law of Belgium requires from its own 
 native-born subjects. I apprehend there 
 can be no doubt that every nation has a 
 right to say under what circumstances 
 it will permit a disposition, or con- 
 tracts of whatever nature they may be, 
 to be entered into by persons who are not 
 native born, but who have become sub- 
 jects from continued residence ; that is, 
 foreigners who come to reside under cer- 
 tain circumstances without obtaining 
 from certain authorities those full rights 
 which are necessary to constitute an ac- 
 tual Belgian subject. Every nation has 
 a right to say how far the general law 
 shall apply to its own born subjects, 
 and the subject of another country ; and 
 the court sitting here to determine It 
 must consider itself sitting in Belgium 
 under the particular circumstances of 
 the case. Now, three witnesses have 
 been examined with respect to the law 
 of Belgium, as applying as well to the 
 acquiring of a domicil in Belgium as to 
 the law with respect to the execution 
 of testamentary instruments. With re- 
 spect to domicil acquired, it is quite 
 clear, according to the evidence of these 
 persons, that no domicil according to 
 the law of Belgium can be acquired 
 unless the authority of the ruling pow- 
 ers is obtained, to authorize the persons 
 who apply for that authority to continue 
 in that country ; that unless that au- 
 thority is obtained, he is liable to be re- 
 moved at any time; that having obtained 
 that authority, he then becomes to all 
 intents and purposes a subject of Bel- 
 gium, and has a right to remain there 
 and enjoy the privileges of a natural-born 
 subject. But it may be a different 
 question, whether a person who' has not 
 obtained that authority, a mere resident 
 
 there, is to be considered as a foreigner 
 simply having a residence and not a 
 domicil. I think it is very doubtful 
 whether the Dutch and Belgian lawyers 
 understand the same thing, — from the 
 evidence given with respect to domicil, 
 ■ — whether they do not consider that a 
 person to become domiciled must have 
 denization, that which is equivalent to 
 our naturalization, and they do not mean 
 simply domicil for the purpose of succes- 
 sion or anything of that description, but 
 they consider that a person in order to 
 become domiciled must place himself by 
 the authority of the Government in the 
 same situation as a Belgian subject, and 
 have the rights and privileges of that 
 country. But I think it is not neces- 
 sary to inquire into this, because I think 
 we have the conclusive evidence of two 
 witnesses as to that which is necessary 
 to give validity to the testamentary dis- 
 positions of persons who reside there, 
 but have not acquired all the rights of 
 Belgian subjects." After referring to 
 the testimony of the expert witnesses 
 concerning the effect of residence in 
 Belgium without authorization to estab- 
 lish domicil there, he concluded : ' ' There- 
 fore I am of opinion that notwithstand- 
 ing the domicil of Mr. Ryan must be 
 considered to have been in Belgium, and 
 that he had in point of law abandoned 
 his original domicil, and had acquired 
 animo et facto a domicil in a foreign 
 country, yet that foreign country in 
 which he was so domiciled would up- 
 hold his testamentary disposition if exe- 
 cuted according to the forms required 
 by his own country. I am therefore of 
 opinion that I am bound to decree pro- 
 bate of the will and all the codicils." 
 
 441 
 
§ 350.] THE LAW OF DOMICIL. [CHAP. XIX. 
 
 showed the testator to be domiciled at the time of death in 
 Belgium; (2) that therefore the English court sitting to 
 determine the validity of his testamentary dispositions must 
 consider itself as sitting in Belgium, and must apply the same 
 law that the courts of that country would be bound to apply ; 
 and (3) that inasmuch as the Code Napoleon (which was in 
 force in Belgium) conferred full civil rights on those for- 
 eigners only who had received authority from the King to 
 establish their domicil there, and as therefore the succession 
 of a foreigner who had not obtained such authority must be 
 determined by the laws of his own country, it followed that 
 the codicils in question were valid, because executed in ac- 
 cordance with the laws of England, where the testator was 
 last domiciled before coming to Belgium. 
 
 The construction put by the learned judge upon the provi- 
 sions of the Code Napoleon was based upon the testimony of 
 two Dutch lawyers (pronounced by Lord Wensleydale to be 
 "short and unsatisfactory"), and has been criticised and dis- 
 sented from in subsequent cases. 
 
 § 350. Id. — Anderson v. Laneuville^ was the case of one 
 who, being Irish by origin, had acquired a domicil in England, 
 and subsequently went to France, and there resided without 
 having received authorization for thirteen years (up to the 
 time of his death), under circumstances which were deemed 
 sufficient to show permanent establishment. He left two 
 wills, one executed in England in accordance with the Eng- 
 lish law, and the other, which was the later of the two, in 
 France in accordance with the French law. The question 
 was as to the validity of the latter will in point of formal ex- 
 ecution. The case was first heard by Sir John Dodson, who 
 held the testator to be domiciled in France, and his will, 
 executed in accordance with the laws of that country, valid. 
 Upon appeal this decision was affirmed by the Privy Council. 
 But although the point was distinctly raised by counsel in the 
 Appellate Court that the testator could not have a domicil in 
 France by reason of his failure to obtain authorization, it was 
 not discussed in the judgment (delivered by Dr. Lushington), 
 The point was, however, in effect decided against them. 
 
 I 2 Spinks, 41 ; 9 Moore P. C. C. 325. 
 442 
 
§ 351.J DOMICIL OP FOREIGNERS IN FRANCE. [CHAP. XIX. 
 
 § 351. Id. Bremer v. Freeman. — In Bremer V, Freeman,^ 
 the subject was considered fully and with great care, and with 
 the assistance of a number of the most eminent lawyers of 
 France, who testified with regard to the French law.^ The 
 
 1 1 Deane, 192 j on appeal, 10 Moore 
 P. C. C. 306. 
 
 2 In Bremer v. Freeman, Frignet, 
 one of the French lawyers called on the 
 part of the appellant, testified : " It ig 
 the opinion of very eminent French 
 advocates and writers of eminence on 
 French law, and it is also my opinion, 
 that by this article foreigners who have 
 not obtained the authorization of the 
 Government for establishing their domi- 
 cil in France are considered in law not 
 domiciled, though resident in France ; 
 but the French, not the English, signi- 
 fication of the tei-m 'domicil' must 
 be carefully borne in mind." And he 
 di-ew this distinction : "In France 
 the term ' domicil ' cai-ries two mean- 
 ings, or rather is divisible into two 
 classes, — one, domicil in its strict sense 
 {propria sens^l), the other, domicil in 
 its broad sense {Into sensu). Domicil, 
 in its strict sense, is that applicable to 
 questions as to the rights of a party, 
 such as the place where he may legally 
 exercise his municipal rights ; and this 
 domicil is determined exclusively by 
 the declarations at the Mairies as to 
 the place the party desires to be con- 
 sidered as his legal domicil. The party 
 makes a formal declaration on this head 
 at the Mairies of the Communes from 
 which he came and to which he goes ; 
 and the place set forth in these declara- 
 tions is then, for the purposes I have 
 above stated, held in strictness to be 
 his domicil ; and as regards a French- 
 man, if no such declarations have been 
 made, the court will infer his place of 
 domicil from circumstances. Such ques- 
 tions are frequently brought for adjudi- 
 cation before the Court of Cassation, in 
 which I practise, and before that court 
 only ; and this distinction is, therefore, 
 not generally known. Domicil, in its 
 other and broad sense (lata sensu), has 
 reference to the obligations of a party. 
 
 one of which is the mode in which he 
 shall make his will ; and this domicil is 
 to be determined by circumstances, and 
 cannot be arbitrarily decided upon in 
 the negative by any such particular 
 formal act. Thus, as regards foreign- 
 ers, the authorization of the Govern- 
 ment to establish a domicil is considered 
 indispensable when the foreigner claims 
 right, i. e., to enjoy les droits civils, 
 but it is not so considered when French- 
 men, or others duly authorized, claim 
 rights against him. So in matters re- 
 lating to a foreigner's will, by which, 
 of course, rights are conferred on other 
 parties, it may be said, accepted by the 
 Testator, the broad, not the strict sense 
 of the term ' domicil ' is applied ; and, 
 therefore, independent of any authority 
 of the Government to the foreigner to 
 establish his domicil, the court will 
 infer that domicil to have existed or 
 not, according to the circumstances of 
 the case. The French law applies the 
 technical expression, ' opening the suc- 
 cession,' to all cases in which a person 
 has died testate or intestate. The suc- 
 cession is considered as opened at the 
 very instant of the death of the de- 
 ceased, independently of any formality, 
 and the succession is called testamen- 
 tary or legal, according to whether the 
 deceased died testate or intestate. The 
 tribunals do not fix the opening of the 
 succession at any certain day, but must 
 declare it opened from the day of the 
 death, and all the consequences thereof 
 take effect from that time. The rules 
 in France, which govern the laws of 
 successions, are very complicated ; but 
 the question of the domicil does not 
 affect the question of succession, except 
 in one point, namely, the determining 
 the Tribunal having jurisdiction to ad- 
 judicate on the question of succession, 
 and that jurisdiction is always deter- 
 mined by the place of the domicil (Jato 
 
 443 
 
§ S51.] 
 
 THE LAW OF DOMICIL. 
 
 [chap. XIX. 
 
 question was in this case also as to the formal execution of 
 a will. The testatrix, whose domicil of origin was English, 
 
 sensii,) of the deceased. The personal 
 rights and remedies of a Frenchman 
 against other Frenchmen do, according 
 to the laws of France, follow him into 
 a foreign country as dependent on the 
 personal law ; but his remedies must, 
 of course, be exercised according to the 
 Tribunals of the country in which he 
 resides. As regards foreigners, how- 
 ever, we do not give them the same 
 rights we claim for Frenchmen ; for a 
 foreigner, simply as such, and without 
 having obtained the authorization of 
 the French Government before re- 
 ferred to, has no right of instituting 
 proceedings against another foreigner 
 in this country." He further held 
 that "domicil (lata sensu) is indepen- 
 dent of the authority of the Govern- 
 ment, and that it is within the province 
 of the Tribunal to judge of the value 
 of the circumstances in reference to 
 which the foreigner must be considered 
 as having or not having his domicil in 
 France." And further, that a person 
 could, in his " opinion, acquire a dom- 
 icil (lata sensu) by mere residence in 
 France, but she cannot by virtue of 
 that domicil claim civil rights without 
 having obtained the authorization of 
 the Government to establish her domi- 
 cil in France (13th Art. Code Napoleon). 
 A prolonged residence in this country, 
 with an intention manifested of remain- 
 ing permanently here, would be suffi- 
 cient, according to the law of France, 
 to establish a French domicil." And 
 further, that "A foreigner permanently 
 residing in France, having a fixed estab- 
 lishment there, and expressing an inten- 
 tion of permanently residing there, is 
 considered, according to the French 
 law, as having his domicil in France. 
 No authorization of the Government is 
 necessary for a foreigner to acquire such 
 a domicil in France. In the absence 
 of any expressed intention by the party 
 of permanent residence, circumstances 
 may afford evidence of that intention 
 in virtue of Article 105 of the Code 
 
 444 
 
 Napoleon. In fact, no autliorization of 
 Government is necessary towards the 
 acquisition by a foreigner of French 
 domicil, conferring the obligations of 
 legal domicil." And further, that in 
 his opinion, Articles 103, 104, and 105 
 of the Code Civil apply "not to French 
 subjects only who may change their 
 domicil, but to foreigners also, who 
 have fixed their permanent abode or 
 domicil in France ; " and the French 
 "courts would have no difficulty in ap- 
 plying the law as expressed in these 
 articles indifferently to French subject 
 or foreigner." 
 
 Senard, another French lawyer, 
 called as a witness by appellants, 
 said: "According to my opinion, a 
 foreigner who has a fixed establish- 
 ment in France, permanently resides 
 there, and expresses his intention of 
 continuing to do so, would, incontest- 
 ably, be considered, according to French 
 law, as domiciled iu France. No au- 
 thorization of Government is necessary 
 for a foreigner to acquire a domicil in 
 France. The authorization of Gov- 
 ernment is only necessary, in order to 
 add the enjoyment of the civil rights 
 defined by the Code to those which natu- 
 rally attach to domicil. In default of 
 an express declaration by the foreigner 
 of such intention of permanent resi- 
 dence, the proof of such an intention 
 will be inferred from circumstances; see 
 the 105th Article of the Code." And 
 having been referred to Articles 103, 104, 
 and 105 of the Code, he said : " These 
 articles are only, as it seems to me, the 
 expression of the reason and general 
 principles of the law of common right, 
 and, therefore, they rule all the ques- 
 tions of domicil, whatever may be the 
 condition of the parties, whether French- 
 men, domiciled foreigners, or mere 
 strangers." Upon the 13th Article of 
 the Code, he said : "There has been a 
 considerable controversy among eminent 
 advocates and jurists in France, relative 
 to the question whether a stranger can 
 
§ 351.J DOMICIL OF FOREIGNERS IN PRANCE. [CHAP. XIX. 
 
 had resided in France a number of years under circumstances 
 which in the opinion of the Judicial Committee were clearly 
 
 acquire in France a legal domicil with- 
 out the authorization of the GoTern- 
 ment. This difficulty results from the 
 terms of the 13th Article of the Code 
 Napoleon, and is caused, as it appears 
 to me, by confounding the distinction 
 between the enjoyment of civil rights, 
 which can only spring from the authori- 
 zation of the Government, with the 
 consequences of domicil, properly so 
 called, which naturally result from the 
 fact of a party having taken np his 
 principal abode in France, with the in- 
 tention of permanently residing there. 
 For a stranger to be a guardian of the 
 children of another, a witness to instru- 
 ments, a witness in a court of justice, 
 as experienced in any particular art 
 {expert enjtistice), and other purposes, 
 it is not sufficient that he may be dom- 
 iciled, he must have a domicil author- 
 ized by the Government ; but in order 
 to the due service upon him of process 
 at his residence, or in order to the de- 
 termination on his death of the Tribunal 
 competent to take cognizance of the 
 question of his succession, it is suffi- 
 cient that he possess such a domicil as 
 is constituted by the fact of his having 
 established his principal residence in 
 France, with the intention of remaining 
 in this country. I desire to add, that 
 this distinction is more especially proper 
 and apparent when the law of England, 
 as to the form in which a will should be 
 made, comes to be considered." 
 
 The third professional witness ex- 
 amined on the part of appellant was 
 Paillet, who testified that "To con- 
 stitute the domicil of a foreigner in 
 France, residence there, de facto, is 
 necessary, joined with an intention of 
 permanently residing there ; " and fur- 
 ther, "There is no formal provision in 
 the Code as to whether a foreigner who 
 has taken up his residence in France, 
 with an intention expressed of perma- 
 nently residing there, is to be considered 
 as domiciled in France, but, according 
 to French jurisprudence, such a person 
 
 is considered as domiciled in France. 
 It is a question much controverted in 
 our jurispmdence, whether the author- 
 ization of the Government is necessary 
 to enable a foreigner to acquire a domi- 
 cil in France ; but I think that, in ac- 
 cordance with numerous and recent 
 decisions of the superior courts (arrSts), 
 u, domicil is acquired, in such cases, 
 without any authorization of the Gov- 
 ernment, though that authorization is 
 indispensable to the foreigner's acquir- 
 ing certain civil rights, according to 
 Article 13 of the Code Napoleon. In 
 the absence of any expressed intention 
 of permanent residence, circumstances 
 may afford evidence of that intention ; 
 and in that case it will belong to the 
 tribunal to judge from the circumstances 
 as to the existence, or not, of such in- 
 tention." Upon the Articles 103, 104, 
 and 105 of the Code Napoleon, he said : 
 " The law does not expressly state that 
 the provisions of those articles apply 
 to foreigners domiciled here under the 
 circumstances I have deposed to, but 
 they are held by inference to do so, as 
 well as to French subjects. Such a 
 fixed residence in France, joined with 
 an intention of permanently remaining 
 there, would oblige a foreigner to con- 
 form, not only to the laws of police, but 
 likewise to the civil laws generally, and 
 especially to those regulating the form 
 of acts and contracts." In support of 
 the opinion he had already expressed on 
 the 13th Article, he said ; "That it is 
 considered that domicil appertains more 
 to the law of nations than the muni- 
 cipal law {loi civile), and that, if the 
 contrary of the opinion he had given 
 were held, the foreigner who has left 
 his country, and takes up his abode in 
 another, animo non reveriendi, would 
 be without any domicil at all ; " he 
 further said, that in his opinion a per- 
 son could, " by taking up her principal 
 residence in France, and manifesting an 
 intention of permanently remaining 
 there (the two conditions must go to- 
 
 445 
 
§ 351.] 
 
 THE LAW OF DOMICIL. 
 
 [chap. XIX. 
 
 sufficient for a change of domicil, but without having obtained 
 authorization for the purpose. She died, leaving a will exe- 
 cuted in Prance according to the English law, and not in 
 accordance with the requirements of the French law. 
 
 The case was first heard by Sir John Dodson, who, although 
 holding the testatrix domiciled in France according to the 
 jus gentium, decided against the validity of the will on the 
 ground of want of authorization ; but his decision was, on 
 appeal, reversed by the Privy Council. The judgment was 
 delivered by Lord Wensleydale,^ who, after finding the evi- 
 
 gether), establish a domicil in France. 
 The law does not determine the length 
 of residence necessary for that purpose. 
 That is a point to he appreciated hy the 
 judge, among the circumstances of the 
 case leading him to his decision." 
 
 On the other hand, Marie, examined 
 on the part of respondents, testified that 
 the cases pointed out in the 11th and 
 13th Articles of the Code Civil are the 
 only two cases in which a foreigner can 
 obtain in France a legal domicil ; the 
 first case being one of international 
 reciprocity, and the second one of ex- 
 press authorization by the Government ; 
 and without these two the foreigner 
 can have only a de facto domicil. And 
 he cited several cases to show that a 
 foreigner cannot acquire a legal domicil 
 in France without authorization. 
 
 Blanchet, another of respondent's 
 witnesses, also a French advocate, con- 
 firmed the reasoning and conclusions of 
 Marie. 
 
 Coin De Lisle, another of respondent's 
 witnesses, declared his opinion " that a 
 foreigner never can acquire a domicil 
 of succession in France, except in con- 
 formity with Article 13 of the Code 
 Napoleon." He admitted the definition 
 of domicil hy Pothier, " le liexi ah. une 
 personne a etabli la siige principal de sa 
 demeure et ses affaires ; " but observed 
 that definition was given before the 
 promulgation of the Code Napoleon, 
 and was applicable to the then exist- 
 ing state of government in France. 
 He added : " I form my opinion that 
 such domicil — that is, domicil as de- 
 
 446 
 
 fined generally by writers on interna- 
 tional law — is not, by the law of 
 France, a sufiicient domicil to render 
 the estate of a deceased foreigner, who 
 had such domicil, subject to the French 
 law of succession, on the ground that 
 the law of succession is purely a muni- 
 cipal law, ' Lex quae pertinet tantum ad 
 jus civile, non ad jus gentium.' " The 
 other two witnesses, Hebert and De 
 Vatismesnil, concurred with respon- 
 dent's witnesses already cited, in hold- 
 ing that a foreigner cannot acquii-e a 
 domicil of succession in France without 
 authorization. 
 
 ^ The following is the part of the 
 judgment bearing upon the subject of 
 this chapter ; — 
 
 "On the whole, their lordships en- 
 tirely concur with the learned judge in 
 his opinion that the deceased was domi- 
 ciled, according to the law of nations, at 
 Paris, both at the time of her death and 
 the time of making her will, if that is 
 at all material ; and we think it is not. 
 
 "This domicil being established in 
 evidence, the burden is thrown on the 
 respondent to prove that the will, in 
 the English form, is sanctioned by the 
 municipal law of France. He must 
 show, upon the balance of the conflict- 
 ing evidence in the cause, that the wills 
 of persons, so domiciled, in that form 
 are allowed by that law. 
 
 "This is the important question, 
 and the only one of any difBoulty in 
 the case. 
 
 " Much evidence was produced of 
 the law of France on both sides ; the 
 
§ 351.] DOMICIL OP FOREIGNERS IN FRANCE. [CHAP. XIX. 
 
 dence of the French law produced to be very unsatisfactory, 
 confused, and conflicting, proceeded to make an independent 
 
 vivd voce testimony of experts in the 
 science and practice of the law, vouch- 
 ing and referring to the Code Napoleon, 
 decrees, and to known treatises. Some 
 of those last have been since brought 
 forward and referred to without objection 
 on either side, and their lordships have 
 to decide on the whole of this (for the 
 most part) very unsatisfactory, confused, 
 and conflicting evidence, whether they 
 are convinced that this will, executed in 
 France in the English form, is valid. 
 
 On the part of the respondents five 
 persons practising in the French courts, 
 stating themselves to be experienced 
 in the law of France, were examined ; 
 on the part of the appellant, three. 
 It is to be lamented that from the 
 very nature of the case we cannot sat- 
 isfy ourselves by the personal exami- 
 nations of those witnesses as to the 
 weight due to each of them, and a 
 proper sense of professional delicacy 
 precludes them from giving evidence as 
 to the merits of each other. We are 
 compelled, therefore, to decide the dis- 
 puted question with inadequate means 
 of judging of their professional eminence, 
 their skill and knowledge. It is to be 
 remarked, speaking with all respect to 
 those gentlemen, that the rule of inter- 
 national law which aU English lawyers 
 consider as now firmly established, 
 namely, that the form and solemnities 
 of the testament must be governed by 
 the law of the domioil of the deceased, 
 does not appear to be recognized, or at 
 least borne in mind by any of them. 
 Nay, in Quartin's case (Dalloz, 147, 1, 
 p. 273), both the Cour Eoyale and the 
 Cour de Cassation expressly decided 
 that the will must be in the form and 
 with the solemnities of the place where 
 it was made, on the principle that 
 'locus regit actum;' an error which 
 is ably exposed in the opinion of M. 
 Target in the Duchess of Kingston's 
 case {Coll. Juridica, 323). The three 
 witnesses called for the appellant, 
 Messrs. Frignet, Senard, and Paillet, 
 
 all maintain the same doctrine. If this 
 position were really true, the case of 
 the appellant would prevail ; but the 
 other witnesses do not maintain the 
 same doctrine. Of the five experts ex- 
 amined for the respondents, three, 
 Messrs. Blanchet, Hebert, and De 
 Vatismesnil, all think that the will, 
 either in the form required by the law 
 of the domicil of origin, or the place 
 where the party dwells, is valid ; a 
 position which, by English lawyers, 
 is certainly now considered to be ex- 
 ploded since the case of Stanley v. 
 Bemes. The whole of these five ex- 
 perts give their opinion that the de- 
 ceased never was domiciled de facto, 
 according to the law of nations, in 
 France, upon the facts stated to the 
 case. In that respect their lordships 
 have already intimated that they en- 
 tertain a contrary opinion, and that 
 circumstance, although it is quite con- 
 sistent with their being right in their 
 opinion of the law, a little diminishes 
 the reliance to be put upon it. These 
 five witnesses all say, some less deci- 
 dedly than others, that to gain a legal 
 domicil in France, the authorization of 
 the Emperor was necessary. Some ad- 
 mit that there are contrary dicta, and 
 decisions. The other three experts, 
 those examined on behalf of the ap- 
 pellant (namely, Frignet, Senard, and 
 Paillet), give their opinion that to 
 acquire a legal domicil, such as will 
 cause the succession to open in France, 
 the imperial authorization is not neces- 
 sary ; but most of these experts also ad- 
 mit that it is a disputed question. 
 
 ' ' This difference between the learned 
 experts arises upon the construction of 
 the 13th article of the Code Napoleon, 
 upon which we can form some opinion 
 ourselves. It is to this effect : ' The 
 foreigner who shall have been admitted 
 by authorization of the Emperor to es- 
 tablish his domicil in France shall enjoy 
 there all civil rights, so long as he 
 shall continue to reside there.' It is 
 
 447 
 
351.J 
 
 THE LAW OP DOMICIL. 
 
 [chap. XIX. 
 
 examination of the French authorities, including judicial 
 decisions and text-writers, and after a careful review, arrived 
 
 said that the rights of testacy and suc- 
 cession are civil rights, and that a dom- 
 iciled foreigner cannot enjoy those rights 
 without this authorizatiou. Pothier, in 
 his treatise "De la Communaute," part 1, 
 cap. 1, art. 1, classes the right of testacy 
 and succession among civil rights which 
 strangers have, though not domiciled, 
 and contracts among the ' droits des gens ' 
 which strangers have ; and in his " Traite 
 des Testaments," cap. 3, § 1, art. 1, p. 
 309, he says : ' Le testament appartient 
 au droit civO, d'oii il suit (ju'Il n'y a que 
 ceux qui jouissent des droits de citoyens 
 qui puissent tester,' and therefore 'au- 
 bains,' or strangers not naturalized, are 
 regularly incapable of bequeathing the 
 goods they have in France. 
 
 ' ' The affirmative provision that every 
 foreigner who shall be authorized to iix 
 his domicil in France shall have all the 
 civil rights, though it does not explicitly 
 say so, no doubt means that the for- 
 eigner, to enjoy all, must have that au- 
 thorization ; but it does not follow from 
 that provision alone that he cannot en- 
 joy any one or more of those rights with- 
 out it ; he may, quite consistently with 
 that article, have the power of testacy 
 and the power of leaving his succession 
 to devolve on his family. But assum- 
 ing that the 13th article prohibits the 
 exercise of any civil right to one who is 
 domiciled but has not an authorizatiou 
 from the Emperor, and therefore denies 
 the right of testacy altogether, what is 
 the consequence ? Is it that the foreigner 
 cannot make any will at all of his per- 
 sonal goods wherever situated, or only of 
 his personal goods situated in France ? If 
 the former is to be considered as the true 
 construction, then the consequence is 
 that a stranger, if he elects to domicil 
 himself in, and dies in, France without 
 authorization, loses his power of making 
 a will altogether, and his effects by the 
 law of nations will not pass under his 
 will, according to the rule already stated. 
 What rights his relatives would have is 
 another question. If he should be dom- 
 
 448 
 
 iciled in a country where, on death, by 
 law all his effects go to the sovereign by 
 a ' droit d'aubaiTie ' more extensive than 
 that of old France, which applied only 
 to personal effects within the kingdom, 
 that law must prevail, and his will 
 would be of no validity, and his rela- 
 tives, by the law of his domicil of ori- 
 gin, would lose all their rights. In this 
 view of the 13th article this will cannot 
 be admitted to probate. If the mean- ' 
 ing is, as seems probable (see Merlin, 
 Eep. ed. 1812, Stranger, § 11), that he 
 shall have no power, unless so author- 
 ized, to make a will of personal effects 
 situate in France, but he may for those 
 elsewhere, still his will, to have any ef- 
 fect, must be in the form and with the 
 solemnities of his domicil according to 
 the general rule, otherwise it cannot be 
 admitted to proof, and the property in 
 France would not pass by it. So that 
 upon any construction of this article, 
 on the assumption that the power of 
 making a will is one of the civil rights 
 on which it operates, the will in qnes- 
 tion is not valid. There seems strong 
 ground to contend that the restraint 
 upon the power of testacy and of the 
 right of devolving personal effects upon 
 relatives, is done away with altogether 
 by subsequent legislation. By the law 
 of the 14th of July, 1819, foreigners are 
 entitled to succeed, and to dispose and 
 receive in the same way as French sub- 
 jects in all the extent of the kingdom. 
 If a stranger can dispose of his personal 
 property in France or anywhere else by 
 will, why should he be the less able to 
 do it because he is domiciled in France ? 
 Be that a.<i it may, if the power of tes- 
 tacy is still restrained by the ISth arti- 
 cle of the Code Napoleon, and if the 
 only effect of that article is that a for- 
 eigner may be legally domiciled, but 
 yet not enjoy the civil right of making 
 a will, this will ought not to be ad- 
 mitted to proof. But it is then con- 
 tended, on the part of the respondent, 
 that by the law of France no domicil, 
 
§ 351.J 
 
 DOMICIL OF FOREIGNERS IN FRANCE. [CHAP. XIX. 
 
 at the conclusion that no authorization is necessary for the 
 establishment of domicil by a foreigner in France, at least for 
 
 for any purpoae whatever, can be ob- 
 tained there except by the previous 
 authorization of the Government. The 
 witnesses differ on this point, and it 
 will be proper to take a short review of 
 the decided eases and the principal text 
 authorities cited at the bar on both sides, 
 and it will be found that they, on the 
 whole, confirm the opinion that a domicil 
 which regulates the succession may be 
 obtained without such authorization. 
 
 "And first let us examine the de- 
 cided cases. These decisions are not 
 treated with the same respect, and are 
 not of so much authority, in France, as 
 the decisions of English courts are in 
 England. By one gentleman (M. Ma- 
 rie) there is said to be an adage that 
 "the decrees are good for those who 
 obtain them;" and it is said that consid- 
 erations of equity prevail too often in 
 the decisions of the French courts, and 
 that they often vary. But we must con- 
 sider these decisions, pronounced by 
 sworn judges, under their judicial re- 
 sponsibility, as of more weight than the 
 opinions of advocate witnesses, or even 
 than some text-writers. Of these de- 
 cisions part are inapplicable, as they re- 
 late, not to testacy or succession, but to 
 civil rights, clearly such, which stran- 
 gers, and even domiciled strangers, are 
 not entitled to, unless they have the re- 
 quired authorization ; such as the right 
 to be free from personal arrest (D'Abaun- 
 za's case; the case of the Princess Ponia- 
 towska, and in Sirey, 1811, fol. 455, 
 Dremmler's case) ; some relate to rights 
 of action in French courts (see cases of 
 Rowland and Son, Sirey, 1844, p. 756 ; 
 id. 1848, p. 417 ; Kirby and others, id. 
 1853, p. 714), to which the mere domicil 
 can give no right unless the authorization 
 of Government be added; others, part 
 of the cases cited, relate to contracts 
 which belong to the droit des gens, 
 which are impliedly governed by the 
 law of the place of residence, indepen- 
 dently of domicil, such as Lloyd's case, 
 and Breul's case, where domiciled for- 
 
 eigners were held bound by an implied 
 contract to have a communauti des 
 biens, upon the principle that the con- 
 tracts of residents are impliedly made 
 according to the usage of the place 
 where they reside. The case of D'Her- 
 was is upon a question of contract ( Si- 
 rey, 1833, 1, 663). None of these cases 
 have any bearing on the present. Those 
 which have, are eases where the succes- 
 sion is held to be regulated by the dom- 
 icil of the deceased, though such domicil 
 was unauthorized by the Government." 
 
 " The fii-st is Gil d'Olivarez (Le Droit, 
 11 October, 1854), in which it was ex- 
 pressly decided, in 1854, by the civil 
 tribunal of Bordeaux, that a foreigner 
 may acquire a domicil, without the au- 
 thorization of the Government, so as to 
 regulate the succession ; that the ques- 
 tion of domicil belongs to the law of 
 nations, and the succession is regulated 
 by it ; and that the 13th article of the 
 Code Napoleon did not apply to such a 
 case. There was an appeal to the Oour 
 Imp^riale, who expressly decided the 
 same way, and that the 13th article, 
 requiring the Emperor's authorization, 
 applied only to the acquisition of civil 
 rights, and did not prevent the acquisi- 
 tion of a domicil by a foreigner, so as to 
 regulate his succession. The only ob- 
 servation to be made against the author- 
 ity of this case is, that the parties con- 
 sented to the court winding up the ac- 
 count, and that the personalty should be 
 governed by the law of domicil, which 
 the court observed is the consequence of 
 a principle generally inculcated by al- 
 most every author and admitted in law. 
 We do not think that this consent 
 weakens the authority of that decree. 
 In this decision the previous authority 
 of a decision at Eiom in 1835 is cited. 
 It was Onslow's case (Dalloz, 1836, 2, 
 57). Onslow, the deceased, had estab- 
 lished himself in France before April 7, 
 1790, and before the promulgation of 
 the Code Napoleon, and was entitled to 
 the exercise of civil rights by virtue of 
 
 29 449 
 
351.J 
 
 THE LAW OP DOMICIL. 
 
 [chap. XIX. 
 
 the purpose of succession ; that the testatrix was domiciled in 
 that country both at the time of her death and at the time of 
 
 that law, and therefore the 13th article 
 did not deprive him of them ; but the 
 court expressly decided that he might 
 be domiciled notwithstanding the 13th 
 article, and that the authorization of 
 Government was not necessary to a 
 domicil which regulated the law of 
 succession. 
 
 "The next case cited was that of 
 Baron de Mecklembourg, decided first by 
 the Tribunal of the Seine and after- 
 wards by the Imperial Court of Paris 
 (Le Droit, 27 July, 1856). The Court 
 of First Instance at Paris determined 
 that, though he had never had the 
 authorization of the Government to en- 
 joy civil rights, yet the legal enjoyment 
 of those rights was independent of dom- 
 icil, and the deceased being domiciled 
 at Paris, his succession opened there. 
 The Imperial Court reversed this judg- 
 ment, on the gi'ound that the deceased 
 had never abandoned his domicil of ori- 
 gin, and that all his heirs were foreign-' 
 ers ; and the court appears to have men- 
 tioned the want of an application for an 
 authorization to establish his domicil in 
 France, as evidence that he never meant 
 to acquire one there, — no more. It 
 does not say that the want of authoriza- 
 tion at once put an end to the right of 
 domicil. 
 
 "In Lynch's case (Sirey, 1851, 2, 
 791), the fact of Lynch not being dom- 
 iciled in Prance at the time of his 
 death, but in Ireland, is the ground of 
 the decision. Whether the fact of his 
 not having ever obtained authority to 
 establish his domicil is used as evi- 
 dence of having no intention to acquire 
 one, or that he had no domicil for the 
 want of it, is difficult to decide. The 
 case cannot, at all events, be considered 
 as contrary to that of D'Olivarez. 
 
 " The case of Connolly was also 
 cited ; it occurred in 1853. It is re- 
 ported by the name of ' De Veine v. 
 Eoutledge ' in Sirey's Reports, 1852, 
 and has been referred to on both sides 
 at the bar. It involves other points 
 
 450 
 
 besides that of the validity of the will. 
 Madame de Veine, a natural daughter 
 of the testator, cited the legatees befoie 
 the civil tribunal of Fontainebleau, to 
 set aside the wUl, as being void accord- 
 ing to the law of France, and to have 
 her share of the succession. That tri- 
 bunal decided that Madame de Veine 
 had not established her case as a legiti- 
 mate daughter, and that, the testator 
 having an English domicil, the will was 
 valid. On appeal, the Superior Court 
 reversed this decision. It seems that 
 the court held that the testator was 
 domiciled in France (though it is never 
 stated that he obtained the authoriza- 
 tion of the Emperor) ; that his succes- 
 sion opened there ; that his natural 
 daughter was legally recognized by him, 
 and, being a French woman by mar- 
 riage, had a right to claim a part of 
 the succession ; and the will being in- 
 valid by the French law, not being in 
 the proper form, Madame de Veine was 
 entitled to recover in her suit. The 
 court add (incoiTectly, as has been said 
 before), that the form of the will must 
 be regulated by the law of the place 
 where it is made. 
 
 " Upon a review of these decisions 
 upon the material question in this case, 
 the effect of a domicil by the law of 
 nations upon the law of succession, it 
 is clear that the great weight of author- 
 ity is in favor of the position that the 
 authorization of the Emperor is not . 
 necessary in order to establish n domi- 
 cil for the purpose. There is no one 
 decision that it is necessary ; for it is 
 by no means clear that Lynch's case so 
 decides, and the case of Olivarez, and 
 the principles laid down in the others 
 clearly support the opposite doctrine. 
 
 " It remains for their lordships to ob- 
 serve on the text-writers referred to on 
 both sides. The authority of Merlin 
 has been cited on the interpretation of 
 Article 13 of the Code Napoleon. It 
 was referred to in the case of the Prin- 
 cess Poniatowska, as laying down the 
 
§ 351.J 
 
 DOMICIL OP FOREIGNERS IN PRANCE. [CIIAP. XIX. 
 
 making the will in question (although the latter point of time 
 was rejected as of no value), and that therefore the will was 
 
 proposition that no domicil could be 
 acquired without the authorization of 
 Government (Sirey, 1811, p. 553 ; Mer- 
 lin, Repertoire, ' Domicil,' ed. 1824, s. 1 3, 
 pp. 16, 17; Repertoire, ed. 1812, 'Stran- 
 ger,' s. 11; ed. 1824, Art. 'Etranger,' 
 s. 1, no. 6, p. 531) ; where he lays down 
 that proposition, against the proposition 
 of M. Proudhon. In the edition of 1830 
 this article has been re-written, and a 
 perfectly different view of the law taken. 
 The question Merlin considers is whether 
 authorization is necessary to gain a dom- 
 icil. He says it was universally allowed 
 to be unnecessary before the Code Civil. 
 He discusses the question for what pur- 
 poses it was rendered necessary by the 
 Code. Certainly, he, says, to enjoy the 
 civil rights reserved to Frenchmen. He 
 could not sue other strangers, not domi- 
 ciled, upon contracts made with thera 
 in France or abroad, for he could not 
 claim any privilege of exemption from 
 the rule ' actio sequitur forum rei.' It 
 is not required to render him liable to 
 be sued in his domicil in France. . It is 
 not required in the computation of ten 
 years, rendered necessary to obtain 
 naturalization. He concludes that the 
 Code has not changed the nature of the 
 domicil at all. He refers to the avis of 
 the Conseil d'Etat of the 18 Prairial, 
 An 11, which was that in every case 
 where a stranger wishes to establish 
 himself in France, he is in all cases 
 bound to obtain the permission of the 
 Government, and that these permissions 
 being, according to circumstances, sub- 
 ject to modifications, and even revoca- 
 tions, cannot be determined by general 
 rules. ^ 
 
 ' ' Merlin says that this opinion was 
 given in answer to a question to the 
 Conseil d'Etat, whether the authorization 
 by the 13th article, giving the foreigner 
 the power to acquire all civil rights , also 
 gives the power of obtaining, by Article 3 
 of the ActeConstitutionnel, 22 Frimaire, 
 An 8, the rights of a French citizen; and 
 he says the answer is to be understood 
 
 according to the subject-matter, namely, 
 the question put to them, and that 
 the expression en toils cas refers to 
 the cases the subject of the inquiry. 
 And besides, he says that this opinion 
 was never inserted in the Bulletin of 
 Laws, and did not bind the courts 
 of justice, and wafs merely meant to 
 govern the conduct of the Minister of 
 the Interior with respect to foreigners 
 who, having lived ten years in France, 
 wished to be recognized as citizens ; 
 and he concludes by stating it as his 
 opinion that a foreigner who establishes 
 his domicil in France without the per- 
 mission of the Government submits 
 himself by that act alone to the jurisdic- 
 tion of the French tribunals, acquiring 
 by that act alone the power to many 
 in the place which he chooses for his 
 habitual residence, and determines by 
 that act alone the competence of the 
 judge who, after his death, takes cog- 
 nizance of his succession that he leaves 
 in France. This latest opinion of Mer- 
 lin seems to be fully warranted by the 
 reasons he gives, and to he perfectly 
 satisfactory. 
 
 " The statement of Legat, ' Code des 
 Etrangers,' pp. 287, 288, founded on 
 the construction of the same avis of the 
 Conseil d'Etat, that a, stranger, unless 
 authorized, cannot have a domicil, ap- 
 pears not to be maintainable ; nor the 
 same statement by Demangeat, ' His- 
 toire de la Condition Civile des Etran- 
 gers en France,' p. 369. 
 
 " A passage was referred to in Za- 
 chariae, 'Cours de Droit Civil,' part 1, 
 ch. 4, p. 280, ' that the establishment 
 by a stranger of his domicil in France, 
 with the authorization of the Govern- 
 ment, has the effect of submitting his 
 succession moMliire to the application 
 of the French law.' Of that there is 
 no doubt ; but it does not follow that it 
 is not true if he is domiciled without 
 it. In the same treatise (p. 278), re- 
 ferring to a prior note (262), it is .said 
 that a stranger requires the same an- 
 
 451 
 
§ 351.J 
 
 THE LAW OP DOMICIL. 
 
 [chap. XIX. 
 
 invalid. It was further held that the failure of the testatrix 
 to procure authorization, and the fact of her making her will 
 in English form, were " some evidence that she did not mean 
 to abandon her English domicil," yet they were of little 
 weight, as it " was highly probable that she knew nothing of 
 the provisions of the Code Napoleon, or of the necessity of 
 making her will in any but the ordinary English form." 
 
 It must be observed that so far as concerns the testimony 
 of the French lawyers, the case was much complicated by the 
 views which they advanced with respect to the rule applicable 
 
 thorizatitm to establish his domicil in 
 France as to enjoy civil rights. He 
 states that this opinion is corroborated 
 by the avis of the Conseil d'Etat, 18-20 
 Prairial, An 11, importing that in every 
 case where a stranger wishes to establish 
 himself in France, he is bound to ob- 
 tain the authorization of Government. 
 The satisfactory explanation given by 
 Merlin, above referred to, does away 
 with the authority of that opinion of 
 the Council of State, and shows that 
 no reliance can be placed on this opin- 
 ion of Zaehariae. 
 
 " Troplong, in his Commentary (Sur 
 la Contrainte par Corps, sec. 596), in- 
 quires who is a stranger domiciled in 
 France, and says that the 13th article 
 of the Code gives the answer, — ' He 
 who has received the authorization of 
 the King to fix his domicil there, and 
 by that right enjoys civil rights.' He 
 is speaking of the liability to arrest, 
 contrainte par corps, and of that there 
 is no question ; but it has no bearing 
 on this case. 
 
 " On the whole, then, on a review 
 of all this evidence of the law of France, 
 their lordships are clearly of opinion 
 that it is not established that for the 
 purpose of having a domicil which 
 would regulate the succession, any au- 
 thorization of the Emperor was neces- 
 sary ; that a legal domicil for this pur- 
 pose was clearly proved, and that con- 
 sequently, if the testatrix had the power 
 to make a will at all, the will in this 
 form was invalid. 
 
 " There are still two English cases 
 
 452 
 
 to be noticed. The respondent relies 
 on Collier v. Eivaz (2 Cnrteis, 855), 
 in which Sir Herbert Jenner Fust de- 
 cided that, on the evidence before 
 him, an Englishman domiciled in Bel- 
 gium by the law of nations, but not 
 authorized by the Government, accord- 
 ing to the 13th article of the Civil 
 Code of France, in force there, might 
 make a will in the English form. The 
 case was not regularly contested, which 
 makes it of less authority. It was a 
 mere question on the parol evidence 
 of the Belgian law, which was very 
 short and unsatisfactory. Their lord- 
 ships have referred to the depositions, 
 and doubt whether the learned judge 
 was warranted by the evidence con- 
 tained in them in coming to the con- 
 clusion which he did. In this case the 
 evidence on both sides is very full, and 
 leads to a different conclusion. On 
 the other hand, there may be cited 
 for the appellant the case of Ander- 
 son V. LaneuviUe (9 Moore V. C. 
 Cases, 325), where the Judicial Com- 
 mittee decided that a domicil was ac- 
 quired in France, though the deceased 
 had not complied with the 13th sec- 
 tion of the Code Napoleon, and that 
 objection was distinctly taken (p. 336). 
 That point, however, does . not appear 
 to have been much considered. Their 
 lordships are of opinion that the judg- 
 ment of the learned judge of the 
 Prerogative Court was unsupported 
 by the evidence, and will advise her 
 Majesty to reverse it, and recall the 
 probate." 
 
§ 352.] DOMICIL OP FOREIGNERS IN PRANCE. [CHAP. XIX. 
 
 for the determination of the validity of the will in point of 
 formal execution ; the witnesses for the appellant holding to 
 the maxim ^^ locus regit actum," and the majority of those 
 examined by respondent holding a will in the form required 
 by the law of either the domicil of origin or the place where 
 the party dwells to be valid ; all of these views, however, being 
 rejected by the court as inconsistent with the English deci- 
 sions. Moreover, Lord Wensleydale expressly declares the 
 reliance of their lordships upon the opinions of the law 
 entertained by the expert witnesses of the respondent to be 
 somewhat diminished by the fact that the latter held, in oppo- 
 sition to the clear opinion of their lordships, that the facts 
 shown were insufficient to prove the establishment in France 
 of even a de facto domicil by the deceased. 
 
 Subsequently an unsuccessful attempt was made to oppose 
 the practical execution of the sentence in this case, by tender- 
 ing proof that the Privy Council had erred in its exposition of 
 the law of France.* To this end was procured the sworn 
 statement of ten of the most eminent advocates of the French 
 bar 5 (named by the President of the Tribunal of the Seine 
 for that purpose), to the effect that upon the admitted facts 
 they were "positively of the opinion that according to the 
 French law the deceased had never acquired in France a 
 domicil of a nature to cause her testament, or the form of 
 her testament, to be ruled by the laws of that country, and 
 that consequently, if that testament was made in conformity 
 with the English law, the deceased would not be judged to 
 have died intestate." But this statement, which was ex parte 
 in its character and made after sentence pronounced, was not 
 permitted to be produced before the Privy Council. 
 
 § 352. Id. Hodgson v. De Beauchesne. — The question 
 was again raised in Hodgson v. De Beauchesne.' Sir John 
 Dodson, upon the authority of Bremer v. Freeman, and in 
 spite of the testimony of French lawyers, held the deceased, 
 who had not obtained authorization from the French Gov- 
 
 * See Phillimore, Int. L. vol. iv. pp. Marie, De Vatismesnil, Dupin, Beth- 
 219, 235. mont, Lionville, Barrot, Villeneuve, and 
 
 * The French lawyers who signed D'EstAnge. 
 
 the statement were Berryer, Demangeat, ^ 12 Moore P. C. C. 285. 
 
 453 
 
§ 353.] THE LAW OF DOMICIL. [CHAP. XIX. 
 
 ernment, to be domiciled in Prance. His decision was reversed, 
 on appeal, by the Privy Council, but the reversal was put upon 
 the ground that the evidence did not sufficiently make out 
 the requisite animus manendi; the failure of the deceased 
 to obtain authorization being relied upon, however, as one 
 circumstance to show that his establishment in Prance was 
 not permanent. While this case cannot be considered as 
 direct authority upon the subject here discussed, it is im- 
 portant because of some remarkable language used by Dr. 
 Lushington in delivering the judgment of the Privy Council. 
 He said : " In solving these difficulties we must always look 
 to the jus gentium ; this proposition, however true, requires 
 some explanation. The tribunal which tries a question of this 
 description is necessarily bound by the law of the country 
 in which it is situate and by which it is constituted. That 
 law, whatever it may be, it must necessarily obey ; but it is 
 not bound to respect the laws of a foreign country save so 
 far as they are in accordance with the jus gentium." 
 
 § 353. Id. Hamilton v. Dallas. — The question again arose 
 in Hamilton v. Dallas,^ a case of intestate succession and leg- 
 
 1 L. R. 1 Ch. D. 257. The Vice- turning to that chapter of the Code 
 Chancellor said: "Then it was sug- -which treats of the domieil, Art. 102 
 gested that hy the French law it was provides that the domieil of every 
 not competent for Lord Howden to Frenchman as to the exercise of his 
 acquire a domieil. The 13th section civil rights is in the place in which he 
 of the Code Napoleon, which has been has his principal establishment. Then 
 referred to for that purpose, in my it speaks of the change of domieil, and 
 opinion, bears no such construction as so on ; and it speaks of other persons 
 ib sought to be put upon it. It cannot than Frenchmen, saying that a married 
 be said that he could not acquire the woman has no other domieil than that 
 right to reside in France." of her husband, a minor not emanei- 
 His lordship, after referring to Art. pated shall live with his father or 
 33, proceeded: "In the first place, I mother, or his tutor, who may be a for- 
 ask myself, — there being no questions eigner, — the minor may be a foreigner, 
 of testacy as in Bremer v. Freeman, — . — and minors who serve or travel habit- 
 has he asserted any right ? He has as- ually with another person shall have the 
 serted no right that I know of, except same domieil as the person they serve, 
 the right of residing ; and that he has with whom they work, and as long as 
 a right to reside by the law of nations, they remain in the same house; so that 
 by the law of France, and by every law the fact that a foreigner can acquire a 
 of reason and good sense, is not to be domieil de facto in France is not for a 
 disputed ; but a right to succeed to the moment to be called in question. It 
 property of which he has died intestate requires no provision in the Code for 
 is not comprehended in or covered by that ; it is a law paramount to the 
 the 13th article. On the contrary, law of the Code, not provided against 
 
 454 
 
§ 353.] 
 
 DOMICIL OP FOREIGNERS IN PEANCE. [CHAP. XIX. 
 
 acy duty. The deceased, Lord Howden, was established in 
 France for sixteen years prior to his death, under circumstan- 
 
 nor provided for in the Code, but a 
 n itural and national right, against which 
 there is no interdiction or prohibition. 
 Now, that this must he the law will he 
 found on referring to Cole on Domicil, 
 in which the matter is treated, and by 
 the authorities to which he refers there ; 
 and without adopting Mr. Cole's con- 
 clusion, which I have no right to do, — ^ 
 that is, to treat it as an authority, what- 
 ever respect I may feel for it, — the 
 ])assage in Merlin upon this subject of 
 domicU. is, in my opinion, quite con- 
 clusive upon the question now before 
 me. He says : — 
 
 " ' Disons done que I'etranger qui, 
 sans la permission du Gouvernement, 
 etablit son domicile en France, se sou- 
 met par cela seul k la jnridiction des 
 Tribunaux Francois, comme il acquiert 
 par cela le droit de se marier, dans le 
 lieu qu'il choisit pour sa residence ha- 
 bituelle ; comme il determine par cela 
 seul la competence de juge qui, aprfes 
 Son deces, devra connattre de la succes- 
 sion qu'il laissera en France.' 
 
 " So that if I am to take that as an 
 exposition of the law, without referring 
 to particular cases, it is plainly an- 
 nounced as being the law that a for- 
 eigner who, without any authority of the 
 Government, shall establish his domicil, 
 becomes entitled to enjoy certain civil 
 rights ; and, more than that, he sub- 
 mits to the authority of the judge of 
 the place which he shall inhabit, and 
 that judge shall have jurisdiction over 
 the question of the succession to his 
 property. That this is plainly the law 
 is not disputed in any of the oases that 
 have been referred to. It may be ob- 
 served that it is not entirely lost sight 
 of in Udny v. tJdny, that very valuable 
 case which has been so often referred to, 
 where Lord Westbury expresses him- 
 self, after distinguishing between the 
 political and the civil status, which has 
 been gone into at length, and I need 
 not, therefore, refer to it further than to 
 quote this passage: ' The political status 
 
 may depend on different laws in differ- 
 ent countries ; whereas the civil status 
 is governed universally by one single 
 principle, namely, that of domicil, which 
 is the criterion established by law for 
 the purpose of determining civil status. 
 For it is on this basis that the personal 
 rights of the party, that is to say, the 
 law which determines his majority or 
 minority, his marriage, succession, tes- 
 tacy or intestacy, must depend.' The 
 cases which have been referred to are 
 not, any one of them, in the slightest 
 degree at variance with that. Forge's 
 case must be considered to be at pres- 
 ent' not in the shape of a binding au- 
 thority, as it is still subject to appeal. 
 That Forgo was a resident in France is 
 beyond all doubt, and that Forgo died 
 intestate is likewise clear. The ques- 
 tion was. Who was to succeed to his 
 property ? The Government said. We 
 succeed, because he had not the author- 
 ity of the Government to live in France ; 
 it must have gone as far as that. That 
 is, however, discountenanced by the 
 Court of Cassation, and it is discoun- 
 tenanced by, and inconsistent with, 
 every other authority that has been 
 referred to. Spech's case is a direct 
 authority against it. In Spech's case, 
 if the want of authorization by the 
 Government to a man's residence in 
 France, and to making his holograph 
 will in France, would have been enough, 
 the Spaiiish consul was right in insist- 
 ing upon the administration of his 
 goods. It was plain, from the decision 
 of the Court of Cassation, that the 
 Spanish consul was not right, that he 
 had no right whatever to interfere in 
 the administration of his goods, although 
 'the testator in that case (the will not 
 being in question as far as the case 
 goes, that I know of), not having any 
 authority fronj the French Govern- 
 ment, yet enjoyed civil rights to the 
 day of his death, and the persons who 
 claimed tlie succe.ssion were not impeded 
 in the slightest degree by the restrio- 
 
 465 
 
§ 3o4.j THE LAW OF DOMICIL. [CHAP. XIX. 
 
 ces which left no doubt of his intention of permanent resi- 
 dence there, but he had not procured authorization. The 
 case was heard by Bacon, V. C, who, after carefully consid- 
 ering the authorities, and referring particularly to the latest 
 French cases, said : " Under these circumstances, I entertain 
 no doubt whatever upon the question which has been argued. 
 I have no doubt of Lord Howden's competency to acquire a 
 French domicil. I have no doubt that he did acquii-e that 
 domicil, beyond all possibility of question." He therefore 
 held that the portion of the estate of Lord Howden, which 
 was undisposed of by will, was (1) distributable according to 
 the French law, and (2) was not subject to legacy duty. 
 He, however, also concluded that Art. 13, "neither in its 
 terms, nor in its sense and spirit, has anything to do with the 
 rights of the person who comes to claim the property [of 
 the deceased] at a time when he and all droits civils to be 
 exercised by him are extinguished and gone ; " thus holding, 
 in effect, that personal succession concerns the rights, not of 
 the deceased, but of those in the line of succession. 
 
 § 354. Results of the English Cases. — It is clear, from the 
 above cases, that the English courts will hold (1) that a for- 
 eigner may, without authorization, establish in Prance a dom- 
 icil in the sense in which that term is ordinarily understood 
 
 tions of the 13th article. Another the Government can lay hands upon all 
 clause referred to was Art. 110, which the property and consider it theirs, for 
 provides that the place where the sue- want of the fonnalities of the 13th 
 cession shall open shall he determined clause being complied with, is wholly 
 by the domicil. Spech's case and Suss- discountenanced. Under these circum- 
 man's case established, as 1 take it, stances, 1 entertain no doubt whatever 
 clearly this, that upon the intestacy of upon the question which has been ar- 
 a foreigner, who has not obtained the gued. I have no doubt of Lord How- 
 authority of the Government, the sue- den's competency to' acquire a French 
 cession shall open in the place where domicil. I have no doubt of the fact 
 he had established his domicil, and that he did acquire that domicil be- 
 shall be determined by the local judge yond all possibility of question. I have 
 in the first instance, and (subject, of no doubt that the 13th article, which 
 course, to any appeal that might be speaks of the enjoyment by him or any 
 brought before a higher authority) that other foreigner of droits civils, neither 
 where the succession opens there it shall in its terms nor in its sense and spirit, 
 be determined, and there the persons has anything to do with the rights of 
 who, according to French law, are en- the person who comes to claim his 
 titled to claim his property, may come property at a time when he and all 
 and have their rights determined. As droits civils to be exercised by him are 
 far as Forge's case goes, the notion that extinguished and gone." 
 
 456 
 
§ S56.J DOMICIL OP FOREIGNERS IN PRANCE. [CHAP. XIX. 
 
 in English jurisprudence ; and (2) that, as they at present 
 understand the French law, a person so domiciled will, with 
 respect to his succession and his testamentary acts, be subject 
 to the same law as a French citizen domiciled in France. 
 
 § 355. American Cases : Dupuy v. Wurtz. — In this country, 
 the New York Court of Appeals, in Dupuy v. Wurtz,^ while 
 holding upon general principles that the deceased, who at the 
 time of her death resided in France, had retained her original 
 New York domicil, and that, therefore, her will executed in 
 conformity to the laws of that State was valid, considered the 
 question, whether she could without authorization establish 
 in France a domicil which would subject her, in matters of 
 personal succession, to the laws of that country, and, upon the 
 sole authority of Melizet's case, arrived at a negative conclu- 
 sion. It was further held by the court, that the failure of 
 the testatrix to obtain authorization was a circumstance to 
 be considered, along with other circumstances tending to 
 show the absence of the animus requisite for the establish- 
 ment of a French domicil. 
 
 § 356. Id. Harral v. Harral. — The subject was somewhat 
 considered in the New Jersey case of Harral v. Harral,^ in 
 which a French woman, the widow of an American who had 
 resided in France, where also he had been married to her, 
 claimed community of goods under the French law. The pre- 
 cise question in the case was, however, one of matrimonial 
 domicil, which is not — at least as understood in this country 
 — necessarily domicil at all, but intended domicil, and is re- 
 sorted to for the purpose of ascertaining the intention of the 
 parties with reference to their mutual property rights.^ But 
 the actual domicil of the parties, and particularly that of the 
 
 1 53 N. Y. 556. See also Tucker v. i Harral v. 'Wallis, 37 N. J. Eq. 458 ; 
 
 Field, 5 Kedf. 139, where the Surrogate, s. o. on appeal Harral v. Harral, 39 id. 
 
 relying upon the opinion of the French 279. 
 
 advocate Clunet, and upon Dupuy u. '^ See the following and the authorities 
 
 Wurtz, held that without authorization by them cited ; Story, Confl. of L. § 191 
 
 a person cannot establish a domicil in et seq.; Kent, Comm. toI. ii. p. 93, note; 
 
 France. This case appears to be directly Wharton, Confl. of L. § 190 et seq.; 
 
 in point, inasmuch as the person whose Dicey, Dom. pp. 268-270 ; Mason v. 
 
 domicil was in question appeared, from Homer, 105 Mass. 116 ; Mason v. Ful- 
 
 motivesofeconomy.permanently tohave ler, 36 Conn. 160 ; and see supra, 
 
 settled in that country. § 37. 
 
 457 
 
I 358.] THE LAW OP DOMICIL. [CHAP. XIX. 
 
 husband at the time of marriage and immediately afterwards, 
 is often an important element in determining the matrimonial 
 domicil, and was so used in this case. The court, therefore, 
 held that the domicil of the deceased, who had not obtained 
 authorization, was, by the jus gentium, in France, and thus 
 arrived at the location in that country of the matrimonial 
 domicil, and the consequent subjection of the husband's prop- 
 erty to the French law of community. 
 
 § 357. Are the Consequences of Authorization Personal, or do 
 they extend to Wife and Family ? — A further question is raised 
 among French jurists ; namely, whetlier the legal consequences 
 of authorization are strictly personal to the foreigner himself 
 who obtains it, or whether they extend also to his wife and in- 
 fant children. Zachariae^ holds the latter position; while De- 
 molombe ^ holds the contrary, remarking that if a foreigner 
 desires authorization for his whole family, it is permissible for 
 him to ask for it. However, upon the principles established 
 in our jurisprudence with reepect to domicil and to naturaliza- 
 tion, it seems hardly conceivable that our courts could do 
 otherwise than hold that wife and children are included in the 
 authorization, unless, perhaps, in case it is, by the terms of 
 the authorization, expressly provided otherwise. 
 
 (b) Domicil in Eastern Countries. 
 
 § 358. Different Rules for the Determination of Domicil ap- 
 plicable to Eastern and to Western Countries. — The principles 
 which we have been considering are applied usually with ref- 
 erence to the countries in which European civilization pre- 
 vails ; to wit, the Christian countries of the world. Are they 
 also applicable to countries in which such civilization does not 
 prevail ? In other words, will an American or European court 
 hold an American or European person to be domiciled in 
 Turkey or China, or one of the barbarous countries of Africa ? 
 and if so, will it apply the same rules for the determination of 
 the establishment of domicil in the latter class of countries as 
 in the former ? 
 
 1 T. 1, p. 162. See also Aubry et Eau, 1. 1, p. 281 ; Demante, t. l,no. 28 Us, iii. 
 ^ Corn's de Code NapoUoii, t. 1, no. 269. 
 
 458 
 
§ 359.] DOMICIL IN EASTERN COUNTRIES. [CHAP. XIX. 
 
 A negative answer to the latter question needs no argument 
 to support it. It is apparent to every one that, for example, 
 the presumption against the establishment by an Englishman 
 of his domicil in France or Italy is not nearly so strong as 
 that against the establishment by the same person of his 
 domicil in Turkey or China, and that fewer and less cogent 
 facts would suflSce as proof in the one case than in the other. 
 In an oft-quoted passage in The Indian Chief,^ Lord Stowell 
 says : " In the western parts of the world alien mercliants 
 mix in the society of the natives ; access and intermixture 
 are permitted; and they become incorporated to almost the 
 full extent. But in the East, from the oldest times, an im- 
 miscible character has been kept up; foreigners are not ad- 
 mitted into the general body and mass of the society of the 
 nation; they continue strangers and sojourners as all their 
 fathers were, — Doris amara suam non intermisouit undam; 
 not acquiring any national character under the general sov- 
 ereignty of the country, and not trading under any recognized 
 authority of their own original country, they have been held 
 to derive their present character from that of the association 
 or factory under whose protection they live and carry on their 
 trade." 2 
 
 § 359. Id. Maitass v. Maitass. — In Maltass V. Maltass,^ the 
 deceased, born at Smyrna, of English parents, continued to 
 reside there, with the exception of a few years of his boyhood 
 passed in England for the purpose of education, up to his 
 death. He engaged in trade at Smyrna, married there, and 
 at his death left his family there residing. The Turkish law 
 not conferring upon those subject to it the power of testacy, 
 the question in the case was whether the will of the deceased 
 was valid. Dr. Lushington held that it was ; but although 
 considering the deceased domiciled in England, he held that 
 
 ^ 3 C. Rob. Ad. 22. he a British merchant, and the cargo be- 
 
 2 This, of course, applies only to longing to him was therefore condemned 
 
 national character, and not to domicil as taken in trade with the enemy. If, 
 
 in the proper sense of that term. The however, he had died at Calcutta, there 
 
 Indian Chief was a prize case in which is no reason to believe that his personal 
 
 M., the American consul at Calcutta, succession would have been held to be 
 
 long resident and engaged in trade in governed by British law. 
 the British factory there, was held to i 1 Robertson Ecol. 67, 80. 
 
 459 
 
§ 360.] 
 
 THE LAW OP DOMICIL. 
 
 [chap. XIX. 
 
 to be immaterial, inasmuch as, if domiciled in Turkey, the 
 English law was applicable by virtue of the treaties between 
 Great Britain and the Porte, and, if domiciled in England, 
 the same law was applicable propria vigore. The learned 
 judge added this language: "I give no opinion, therefore, 
 whether a British subject can or cannot acquire a Turkish 
 domicil ; but this I must say : I think every presumption is 
 against the intention of British Christian subjects voluntarily 
 becoming domiciled in the dominions of the Porte. As to 
 British subjects, originally Mussulmen, as in the Bast Indies, 
 or becoming Mussulmen, the same reasoning does not apply 
 to them as Lord Stowell has said does apply in cases of a total 
 and entire difference of religion, customs, and habits." 
 
 § 360. Can an American or European acquire a Domicil in an 
 Eastern Country ? Re Tootal's Trusts. — In the very recent Case 
 
 of Tootal'sTrustSji the English Court of Chancery has had occa- 
 
 1 L. E. 23 Ch. D. 532. Chitty, J., 
 said : " The first and principal question, 
 then, is where the testator was domi- 
 ciled at the time of his death. 
 
 " It is, admitted that his domicil of 
 origin was in England. The burden 
 of proof that he had acquired a new 
 domicil of choice, therefore, rests on the 
 petitioners. 
 
 " The facts are not in dispute. Af- 
 ter some previous changes of residence, 
 wliich it is unnecessary to ti'ace, the 
 testator, in 1862, went to reside in 
 Shanghai in the Empire of China, and, 
 with the exception of some visits to 
 England in 1864 and 1873, for health 
 and business, he continued to reside 
 at Shanghai till his death, which oc- 
 curred in 1878. During his residence 
 there he very extensively engaged in 
 business in connection with newspapers, 
 being the manager and part proprietor 
 of the ' North China Herald ' and the 
 'North China Daily News,' and other 
 publications and periodicals, all of 
 which were published at Shanghai, 
 and he was also -. partner in a print- 
 ing business there. 
 
 " Evidence has been adduced on the 
 part of the petitioners showing that for 
 
 460 
 
 some years before his death he had de- 
 termined to reside permanently at Shang- 
 hai, and had relinquished all intention 
 of ever returning to England, and that 
 he had, in fact, on several occasions, 
 expressed his intention of not returning 
 to England. This evidence remains un- 
 contradicted on the part of the Crown. 
 In his will he describes himself as of 
 Shanghai in the Empire of China. In 
 these circumstances it was admitted by 
 the petitioners' counsel that they could 
 not contend that the testator's domicil 
 was Chinese. This admission was rightly 
 made. The difference between the re- 
 ligion, laws, manners, and customs of 
 the Chinese and of Englishmen is so 
 great as to raise every presumption 
 against such a domicil, and brings the 
 case within the principles laid down 
 by Lord Stowell in his celebrated judg- 
 ment in The Indian Chief, and by Dr. 
 Lushington in Maltass v. Maltass. 
 
 " But it is contended on the part of 
 the petitioners that the testator's domi- 
 cil was what their counsel termed 
 ' Anglo-Chinese,' a term ingeniou.sly 
 invented in analogy to the term ' Anglo- 
 Indian.' 
 
 " To make this contention intelli- 
 
§ 360.] 
 
 DOMICIL IN EASTERN COUNTRIES. [CHAP. XIX. 
 
 sion to consider the subject of domicil at a Chinese ti'eaty port. 
 T., whose domicil of origin was English, went to Shanghai 
 
 gible, it is necessary to state some fur- 
 ther facts. Under the treaties between 
 her Majesty and the Emperor of China, 
 of 1842, 1343, and 1858, British subjects 
 with their families and their establish- 
 ments are allowed to reside for the pur- 
 pose of carrying on their mercantile 
 pursuits without molestation at Shang- 
 hai and certain other cities, and to 
 establish warehouses, churches, hos- 
 pitals, and burial-grounds. By the 
 15th clause of the treaty of 1858, it 
 is stipulated that all (Questions in re- 
 gard to rights of property or persons 
 arising between British subjects shall 
 be subject to the jurisdiction of the 
 British authorities. By the same treaty 
 provision is made for the settlement 
 of disputes between British subjects and 
 Chinese, by the joint action of the Brit- 
 ish consul and the Chinese authorities, 
 and also for the Chinese authorities 
 themselves affording protection to the 
 peraons and properties of British sub- 
 jects. 
 
 "The treaties do not contain any 
 cession of territory so far as relates to 
 Shanghai, and the effect of them is to 
 confer in favor of British subjects special 
 exemptions from the ordinary territorial 
 jurisdiction of the Emperor of China, 
 and to permit them to enjoy their own 
 laws at the specified places. Similar 
 treaties exist in favor of other European 
 Governments and the United States. 
 
 " By virtue of these treaties and of 
 the statutes 6 & 7 Vict. c. 80, and c. 
 94, the Crown has, by the Order in 
 Council of the 9th of March, 1865, con- 
 stituted a Supreme Court at Shanghai. 
 
 "The first of these statutes, inti- 
 tuled ' An Act for the better Govern- 
 ment of her Majesty's Subjects resorting 
 to China,' enables ' her Majesty, by 
 Order in Council, to ordain ' for the 
 government of her subjects within the 
 dominion of the Emperor of China, or 
 being within any ship or vessel at a 
 distance of not more than one hundred 
 miles from the coast of China,' any law 
 
 or ordinance as effectually as any such 
 law or ordinance could be made by her 
 Majesty in Council, for the government 
 of her subjects within Hong-Kong, 
 which had been ceded to her Majesty. 
 The second of the statutes, commonly 
 known as the 'Foreign Jurisdiction Act, 
 after reciting that by treaty, capitula- 
 tion, grant, usage, sufferance, and other 
 lawful means, her Majesty, had power 
 and jurisdiction within divers coun- 
 tries and places out of her dominions, 
 and that doubts had arisen how far the 
 exercise of such powera and jurisdiction 
 was controlled by and dependent on the 
 laws and customs of the realm, enacts 
 that her Majesty may exercise any power 
 or jurisdiction which she then had, or 
 at any time thereafter might have, with- 
 in any country or place out of her do- 
 minions, in as ample a manner as if she 
 had acquired such power or jurisdiction 
 by the cession or conquest of territory. 
 The Order in Council by which the Su- 
 preme Court was established, provides 
 that all hev Majesty's jurisdiction exer- 
 cisible in China for the judicial hearing 
 and determination of matters in differ- 
 ence between British subjects, or be- 
 tween foreigners and British subjects, 
 or for the administration or control of 
 the property or persons of British sub- 
 jects, shall be exercised under or accord- 
 ing to the provisions of the order and 
 not otherwise. It further provides that 
 subject to the provisions of the order, 
 the civil jurisdiction shall, as far as 
 circumstances admit, be exercised upon 
 the principles of, and in conformity with, 
 the common law, the rules of equity, the 
 statute law, and other law for the time 
 being in force in and for England. The 
 Supreme Court is a Court of Law and 
 Equity, and a Court for matrimonial 
 causes, but without jurisdiction as to 
 dissolution or nullity or jactitation of 
 marriage. It is a Court of Probate, 
 and as such, ' as far as circumstances 
 admit,' has for and within China, with 
 respect to the property of British sub- 
 
 461 
 
360.] 
 
 THE LAW OP DOMICIL. 
 
 [chap. XIX. 
 
 in 1862, where he became extensively engaged in newspaper 
 and printing business, and where he continued to reside, 
 
 jeots having at the time of death 
 ' their fixed places of abode in China,' 
 all such jurisdiction as for the time 
 being belongs to the Court of Probate 
 in England. It has jurisdiction for the 
 safe custody of the property of British 
 subjects not having at the time of 
 death their fixed abode in China or 
 Japan. 
 
 " The exceptions from the jurisdic- 
 tion of the court as a matrimonial court 
 in regard to dissolution, nullity, or 
 jactitation of marriage are important, 
 and the effect of them is apparently to 
 leave Englishmen subject to the juris- 
 diction of the Court for Matrimonial 
 Causes in England in respect of the ex- 
 cepted matters. 
 
 " Upon these facts it is contended for 
 the petitioners that there exists at the 
 foreign port of Shanghai an organized 
 community of British subjects indepen- 
 dent of Chinese law and exempt from 
 Chinese jurisdiction, and not amenable 
 to the ordinary tribunals of this coun- 
 try, but bound together by law which is 
 English law, no doubt, but English law 
 with this difference, that the English 
 revenue laws do not form part of it, and 
 that by residence and choice the testator 
 became a member of this community, 
 and as such acquired an Anglo-Chinese 
 domicil. 
 
 " The authorities cited in support of 
 this contention for an Anglo-Chinese 
 domicil relate to the Anglo-Indian dom- 
 icil of persons in the covenanted service 
 of the East India Company. These au- 
 thorities are generally admitted to be 
 anomalous. They ai'e explained by 
 Lord Hatherley, in his judgment in 
 Forbes v. Forbes, and by Lord Justice 
 Turner, in Jopp v. Wood. The point 
 that the animus manendi was infen'ed 
 in law from the obligation to serve in 
 India as stated by Lord Hatherley, has 
 no bearing on the case before me, in 
 which the evidence is sufficient for gen- 
 eral purposes to establish the animus 
 manendi. But the observations of Lord 
 462 
 
 Justice Turner that the East India 
 Company was regarded as a foreign 
 Government are material. He says : ' At 
 the time when those cases [on Anglo- 
 Indian domicil] were decided, the Gov- 
 ernment of the East Indian Company 
 was in a gi'eat degree, if not wholly, a 
 separate and independent government 
 foreign to the Government of this coun- 
 try, and it may well have been thought 
 that persons who had contracted obliga- 
 tions with such Government for service 
 abroad could not reasonably be consid- 
 ered to have intended to retain their 
 domicil here. They, in fact, became as 
 much estranged from this country as if 
 they had become servants of a foreign 
 Government.' 
 
 " Lord Stowell, in his judgment in The 
 Indian Chief, shows that in his time the 
 sovereignty of the Great Mogul over the 
 British territories in India was merely 
 nominal, being, as he says, occasionally 
 brought forward for purposes of policy, 
 and that the actual authority of govern- 
 ment over these territories was exer- 
 cised with full effect by this country, 
 and the East India Company, a creature 
 of this country. His observation as 
 to the authority of government being 
 exercised by this country is not really 
 inconsistent with the passage above 
 cited from Lord Justice Turner's judg- 
 ment. Lord Stowell was not address- 
 ing himself to the particular point for 
 which I have quoted Lord Justice 
 Turner's judgment. Although the Gov- 
 ernment of British India was English, 
 being carried on principally by the 
 agency of the chartered company, it was 
 for all practical purposes a distinct Gov- 
 ernment from that of Great Britain, 
 and in that sense it was, as Lord Justice 
 Turner says, regarded as a foreign Gov- 
 ernment. At Shanghai there is a Brit- 
 ish consul, residing there by virtue of 
 the treaties; but there is no government 
 by British authority existing there, and 
 there is nothing which can be regarded 
 as a separate or independent Govern- 
 
§ 360.] 
 
 DOMICIL IN EASTERN COUNTRIES. [CHAP. XIX. 
 
 with the exception of several visits to England for health and 
 business, up to his death in 1878. In his will he described 
 
 ment, and the analogy which the peti- 
 tioners seek to establisli with an Anglo- 
 Indian domicil is not made out. 
 
 "On principle, then, can an Anglo- 
 Chinese domicil be established ? The 
 British community at Shanghai, such as 
 it is, resides on foreign territory ; it is 
 not a British colony, nor even a Crown 
 colony, although by the statutes above 
 referred to, the Crown has as between 
 itself and its own subjects there a juris- 
 diction similar to that exercised in con- 
 quered or ceded territory. 
 
 " Residence in a territory or country 
 is an essential part of the legal idea of 
 domicil. Domicil of choice, says Lord 
 Westbury in Udny v. Udny, is a con- 
 clusion or inference which the law de- 
 rives from the fact of a man fixing vol- 
 untarily his sole or chief residence in a 
 particular place with the intention of 
 continuing to reside there for an unlim- 
 ited time. He speaks of residence in a 
 particular place, and not of a man at- 
 taching himself to a particular commu- 
 nity resident in the place. In Bell v. 
 Kennedy he uses similar expressions. 
 Domicil is an idea of the law : ' it is the 
 relation which the law creates between 
 an individual and a particular locality 
 or country.' He refers to locality or 
 country, and not to a particular society 
 subsisting in the locality or country. 
 The difference of law, religion, habits, 
 and customs of the governing commu- 
 nity may, as I have already pointed out, 
 be such as to raise a strong presumption 
 against the individual becoming dom- 
 iciled in a particular country ; but there 
 is n authority that I am aware of in Eng- 
 lish law that an individual can become 
 domiciled as a member of a community 
 which is not the community possess- 
 ing the supreme or sovereign territorial 
 power. There may be, and indeed are, 
 numerous examples of particular sects or 
 communities residing within a territory 
 governed by particular laws applicable 
 to them specially. British India affords 
 a familiar illustration of this proposi- 
 
 tion. But the 'Special laws applicable 
 to sects or communities are not laws of 
 their own enactment; they are merely 
 parts of the law of the governing com- 
 munity or supreme power. 
 
 "It may well be that a Hindoo or 
 Mussulman settling in British India, 
 and attaching himself to his own relig- 
 ious sect there, would acquire an An- 
 glo-Indian domicil, and by virtue of 
 such domicil would enjoy the civil status 
 as to marriage, inheritance, and the like 
 accorded by the laws of British India to 
 Hindoos or Mussulmans, and such civil 
 status would differ materially from that 
 of a European settling there and at- 
 taching himself to the British commu- 
 nity. But the civil status of the Hin- 
 doo, the Mussulman, and the European 
 would in each case be regulated by the 
 law of the supreme territorial power. 
 
 " In the case before me the conten- 
 tion is for a domicil which may not 
 improperly be termed extra-territorial. 
 The sovereignty over the soil at Shang- 
 hai remains vested in the Emperor of 
 China with this exception, that he has 
 by treaty bound himself to permit Brit- 
 ish subjects to reside at the place for the 
 purposes of commerce only, without in- 
 terference on his part, and to permit the 
 British Crown to exercise jurisdiction 
 there over its own subjects, but over no 
 other persons. 
 
 " According to the petitioner's argu- 
 ment, the subjects or citizens of all the 
 foreign States who enjoy similar treaty 
 privileges would (subject to any particu- 
 lar exceptions arising from the law of 
 their own country in relation to domi- 
 cil), acquire, under circumstances similar 
 to those in the present case, a new dom- 
 icil of choice. If, for instance, a citi- 
 zen of the United States were to reside 
 at Shanghai with the intention of re- 
 maining there permanently, but not un- 
 der such circumstances as would be 
 sufficient to rebut the strong presump- 
 tion against a Chinese domicil, and were 
 to attach himself so far as he could to 
 
 463 
 
§ 361.] 
 
 THE LAW OF DOMICIL. 
 
 [chap. XIX. 
 
 himself as "of Shanghai, in the Empire of China." Evidence, 
 which was uncontradicted, was adduced sliowing that for some 
 years before his death he had determined to reside perma- 
 nently at Shanghai, and had relinquished all intention of ever 
 returning to England. Under these circumstances (the ques- 
 tion being one of legacy duty, which was due if T.'s domicil 
 was English at the time of his death), counsel who opposed the 
 English domicil " admitted that they could not contend that 
 the testator's domicil was Chinese ; " and this admission was 
 held by Chitty, J., who decided the case, to have been rightly 
 made. Counsel, however, set up the theory of an " Anglo- 
 Chinese " domicil, in analogy to " Anglo-Indian " domicil, upon 
 the ground of the existence at Shanghai of an English com- 
 munity under treaty stipulations. But the court repudiated 
 this theory, and held the domicil of the testator to be English. 
 § 361. Id. — Here, then, we have, according to the uncon- 
 tradicted evidence, (1) complete abandonment of the English 
 
 one of the European communities there, 
 say, for an instance, the British com- 
 munity, he would, according to the 
 petitioner's contention, have lost his 
 domicil of origin, and would have ac- 
 quired an Anglo-Chinese domicil, which 
 for most practical purposes would be 
 equivalent to an English domicil. In 
 my opinion he would not acquire such a 
 domicil. 
 
 "It appears to me that there is no 
 substantial difference as to the question 
 I am considering between the residence 
 of a British subject at Shanghai, or at 
 any factory in Turkey or elsewhere, or 
 the East, whether by virtue of special 
 treaties, capitulations, sufferance, or the 
 like. But such factories are not re- 
 garded as colonies or foreign countries 
 for the purpose of domicil. There may 
 be commercial domicil there in times 
 of war with reference to the law of cap- 
 ture, but that is altogether a different 
 matter. 
 
 "No authority except those relating 
 to Anglo-Indian domicil has been cited 
 in support of the petitioner's conten- 
 tion as to domicil. In Maltass v. Mal- 
 tass, already cited, Dr. Lushington 
 
 464 
 
 admitted to probate the will, valid ac- 
 cording to the law of England, of an 
 English merchant resident at a British 
 factory at Smyrna. He held that if the 
 treaty between England and the Porte 
 was applicable to British merchants resi- 
 dent or domiciled in the ordinary ac- 
 ceptation of the term in Smyrna, the 
 provisions of the treaty decided what 
 was to be done in the case of suc- 
 cession to personal estate; namely, that 
 it was to follow the law of England. 
 But he considered that the deceased was 
 domiciled, not in a colony, but in Eng- 
 land. . . . For these reasons I hold that 
 there is no such thing known to the law 
 as an Anglo-Chinese domicil, that the 
 testator's domicil remained English, 
 and that the circumstances are not suffi- 
 cient to create any exception from the 
 broad principle that legacy duty is pay- 
 able when the domicil is British." Dr. 
 Westlake reviews this decision at length 
 (Law Mag. & Eev. 4th ser. vol. ix. p. 363, 
 August, 1884), and dissents from the 
 apparent conclusion that an English- 
 man cannot acquire a domicil at a Chi- 
 nese treaty port. 
 
§ 361.] DOMICIL IN EASTERN COUNTRIES. [CHAP. XIX. 
 
 domicil of origin, and (2) residence in China with intention 
 to remain there permanently. If this case is to be accepted 
 as an authority upon this point, therefore, something more is 
 necessary for the establishment by an American or a European 
 of his domicil in a country in which European civilization does 
 not prevail, than abandonment of his domicil of origin, and 
 mere residence with intention to remain permanently. What 
 more is necessary has never been pointed out, although, doubt- 
 less, as Dr. Lushington intimates,^ a change of religion would 
 be deemed sufficient. 
 
 ^ Supra, Maltass v. Maltass. 
 
 30 465 
 
§ 362.] THE LAW OF DOMICIL. [CHAP. XX. 
 
 CHAPTER XX. 
 
 CRITERIA OP DOMICIL ; OR THE EVIDENCE BY WHICH DOMICIL 
 
 IS SHOWN. 
 
 § 362. Recapitulation of General Principles of JESvidence al- 
 ready referred to. — It has been frequently remarked that 
 domicil is a mixed question of law and of fact. Having dis- 
 posed of that branch of the subject which may be more prop- 
 erly termed the law of domicil, having discussed its definition, 
 its nature and classification, its attribution by law, and its 
 acquisition by choice, its relation to particular classes of per- 
 sons and to particular places, etc., we come now to consider 
 the evidence by which it is shown. And it may be well here 
 to recapitulate a few principles of evidence already referred to; 
 namely, (1) Domicil of origin is prima facie at the place of 
 birth, subject to correction upon proof that the parent was 
 domiciled elsewhere at the time of the birth of the child.^ 
 (2) The domicil of origin of a foundling is prima facie where 
 he is found, subject to correction upon discovery that he was , 
 born elsewhere, or upon discovery of his parents domiciled 
 elsewhere.2 (3) Domicil once shown to exist is presumed to 
 continue, and the burden of proof rests upon him who asserts 
 a change.^ (4) It requires fewer circumstances to show a 
 change of municipal than of national or g'Masi-national domi- 
 cil.* (5) The same is true as between jwa«i-national and 
 national domicil, though in a less degree; slighter proofs 
 being required to show a change of the former than of the 
 latter.^ (6) It requires stronger proofs to show the acquisi- 
 tion of a domicil of choice, in derogation of a domicil of 
 origin, than the substitution of one domicil of choice for 
 another ; ^ and slighter proofs than either to show a reverter 
 
 1 Supra, § 105. 4 Supra, g 180. 
 
 ^ I<1- 6 Supra, § 123. 
 
 8 Supra, §§ 115, 122 et seq., 151. 6 Supra, § 115 et seq. 
 466 
 
§ 365.J CRITERIA OF DOMICIL. [CHAP. XX. 
 
 of domicil of origin, — "domicil of origin clings closely," and 
 " reverts easily." ^ 
 
 § 363. The Discussion relates directly to the Domicil of Inde- 
 pendent Persons. — With respect to the domicil of dependent 
 persons there need be no discussion here. To ascertain the 
 domicil of such a person, all that is necessary, the dependence 
 being shown, is to go a step farther back in the inquiry, and 
 to ascertain the domicil of the independent person upon 
 which depends the domicil of the person in question. The 
 discussion here will relate to the evidence by which the acqui- 
 sition and loss of domicil of choice by independent persons 
 are usually shown. 
 
 § 364. The Necessary Factum Simple and ISasy to prove. — 
 We have seen that into a change of the domicil of an inde- 
 pendent person two elements enter, — factum et animus.^ 
 The factum, which is the transfer of bodily presence from one 
 place to another, is usually capable of easy proof. It is purely 
 a physical fact, generally open and notorious, and rarely in 
 dispute, and there is, therefore, no need for resort to infer- 
 ence, presumption, or a nice balancing of conflicting proofs. 
 " Residence and change of place are obvious, and cannot be 
 mistaken." ^ 
 
 § 365. The Necessary Animus Complex and often Di£5cult to 
 prove. — But with regard to the animus or intention with 
 which the change of bodily presence is made, it is otherwise. 
 That is a mental fact, and, therefore, more difficult to discover, 
 and liable to misconception and dispute. It is provable in two 
 ways ; namely, (1) by the testimony of the person himself, 
 and (2) inferentially or inductively by the proof of other 
 facts, which are physical in their character, and, therefore, 
 capable of proof by means other than his testimony, and 
 which tend more or less strongly to indicate the mind of 
 such person. " Acta exteriora indicant interiora secreta." 
 
 But when we. come to inquire what facts are to be taken 
 as indicative of intention, we are met by great difficulty ; so 
 great that, to use the language of Shaw, C. J.,^ " The ques- 
 
 ' Supra, §§ 110 et seq., 119 et seq., ^ Tenney, J., in Wayne v. Greene, 
 190 et seq. 21 Me. 357. 
 
 1 Supra, § 125 et seq. ^ Thorndike v. Boston, 1 Met. 242, 
 
 467 
 
S 367.] THE LAW OF DOMICIL. [CHAP. XX. 
 
 tions of residence, inhabitancy, or domicil ... are attended 
 with more difficulty than almost any other which are pre- 
 sented for adjudication." 
 
 § 366. Each Case must be determined upon its own Circum- 
 stances.— The circumstances which go to make up the lives 
 of different individuals differ so widely that no two can be 
 judged precisely alike. What would be highly important and 
 of great probative force in the case of one, may be trifling and 
 meaningless in the case of another. Said Rush, President, in 
 Guier v. O'Daniel:^ "Employments of the most opposite char- 
 acter and description may have the same effect to produce a 
 domicil. A man may be alike domiciled, whether he supports 
 himself by ploughing the fields of his farm or the waters of 
 the ocean. It is not exclusively by any particular act that a 
 domicil, generally speaking, is acquired, but by a train of 
 conduct manifesting that the country in which he died was 
 the place of his choice, and, to all appearance, of his intended 
 residence. The sailor who spends whole years in combating 
 the winds and waves, and the contented husbandman whose 
 devious steps seldom pass the limits of his farm, may, in their 
 different walks of life, exhibit equal evidence of being domi- 
 ciled in a country." 
 
 Hence it is impossible to lay down any positive rule upon 
 the subject, but each case must be judged by its own facts and 
 circumstances.^ 
 
 § 367. Id. — Lord Penzance, in Sharpe v. Crispin,^ remarks : 
 " Did he voluntarily adopt England as his home and domicil 
 
 245. In McDaniel v. King, 5 Cush. 469, White v. Brown, 1 Wall. Jr. C. Ct. 217; 
 473, the same judge said: "Thequestion Bustis, C. J., in Cole v. Lucas, 2 La. 
 of residence or domicil is one of fact, and An. 946; Sandei-son v. Ralston, 20 id. 
 often a very difficult one; not because the 312 ; Colbum v. Holland, 14 Rich. Eq. 
 principle on which it depends is not very 176. 
 clear, hut on account of the infinite va- i 1 Binn. 349 note, 
 riety of circumstances hearing upon it, ^ Hodgson v. De Beauohesne, 12 
 scarcely one of which can be considered Moore P. 0. C. 285 ; CockreU v. Cock- 
 as a decisive test." And again, in Abing- rell, 2 Jur. (n. s.) 727; Enuis v. Smith, 
 ton V. North Bridgewater, 23 Pick. 170 : 14 How. 400; Lyman ». Fiske, 17 Pick. 
 " As a question of fact it is often one 231 ; Sears v. Boston, 1 Met. 250 ; Du- 
 of great difficulty, depending some- puy v. Wurtz, 53 N. Y. 556 ; Hegeman 
 times upon minute shades of distinction v. Fox, 81 Barb. 475 ; Bupuy v. Sey- 
 whioh can hardly be defined." See mour, 64id. 156 ; Guierr. O'Daniel, sm- 
 also Lord Chelmsford, in Pitt i). Pitt, ^a ; Hairston ■». Hairston, 27Miss.704. 
 4 Maoq. H. L. Cas. 627 ; Grier, J., in i L. R. 1 P. & D. 611. 
 468 
 
§ 368.] CRITERIA OP DOMICIL. [CHAP. XX. 
 
 with the intention of renouncing and abandoning the Portu- 
 guese domicil which his origin had conferred upon him ? I 
 was much struck with the argument that such a resolve ought 
 to be indicated by some acts or words of a marked character, 
 from which definite intentions of a permanent nature might 
 be safely collected. But while admitting this as a general 
 proposition, it is, I think, sufficiently obvious that the mode 
 in which a man may be expected to evidence his intentions 
 on such a subject must vary indefinitely with the age, char- 
 acter, circumstances, and general conduct of the individual. 
 In canvassing the words and actions of a youth just emerging 
 from minority, and still wholly dependent on his father, one 
 would not expect the intention, if it existed, of making Eng- 
 land his home to be evidenced by such acts as would be likely 
 to attend the resolve of a matured man of business. Nor 
 would it be reasonable to look for conduct such as might be 
 evinced by a healthy, energetic youth, in the full use of his 
 faculties, in one who was neither healthy nor energetic, and 
 whose mental faculties were weak, if not yet unsound. I am 
 far from saying that this last condition dispenses with the 
 proof of the intention in question, or that the existence of the 
 intention, in all its fulness and completeness, must not be 
 arrived at by the court before a change of domicil can be de- 
 clared. But I am speaking of the media of proof, and I hold 
 it to be unreasonable to require any further proof to this end, 
 than the individual, such as he really was, might fairly be 
 expected to have furnished in the circumstances in which he 
 was placed, if he had, in fact, really and truly entertained the 
 intention of which we are in quest." 
 
 § 368. Id. — To the same effect was the language of Dr. 
 Lushington, speaking for the Privy Council in Hodgson v. De 
 Beauchesne : ^ " With respect to the evidence necessary to 
 establish the intention, it is impossible to lay down any posi- 
 tive rule. Courts of justice must necessarily draw their con- 
 clusions from all the circumstances of each case ; and each 
 case must vary in its circumstances ; and, moreover, in one 
 a fact may be of the greatest importance, but in another the 
 same fact may be so qualified as to be of little weight." 
 
 1 12 Moore P. C. C. 285, 330. 
 
 469 
 
§ 370.] THE LAW OF DOMICIL. [CHAP. XX. 
 
 § 369. All the Facts of a Man's Life Evidence of bis Domicil. 
 
 — It frequently happens that there appear a few simple and 
 decisive facts which relieve a case of any difficulty ; but, on 
 the other hand, it also frequently happens that the prominent 
 facts in a man's life are so nearly in equilihrio that resort 
 must be had to the closest scrutiny of his whole life and con- 
 duct before any definite result can be reached. There is, 
 therefore, no fact which is of itself conclusive evidence of 
 intention ; and, on the other hand, there is scarcely any fact 
 too trivial to be of service on occasion. " We must look to 
 all the facts down to the last moment of his life." ^ " Acts 
 and declarations," ^ « conduct," » " mode of life," * " habits," ^ 
 " disposition," ^ " character," ^ " age," * " circumstances," ^ 
 ^' pursuits," ^^ " domestic relations," ^^ " family, fortune, and 
 health ; " ^ and, in short, " the whole history of the man from 
 his youth up," ^^ furnish the criteria by which intention is to 
 be determined, and the determination is to be from the pre- 
 ponderance of evidence.^* 
 
 § 370. Id. — Kindersley, V. C, who has considered this sub- 
 ject in a number of cases, says with great force, in Drevon 
 V. Drevon : ^ " But, whatever is the definition, if you could 
 
 ' Bramwell, B., in Attorney-General Wayne v. Greene, supra ; Hallet w. 
 
 •0. Pottinger, 6 Hurl. & Nor. 733. Bassett, 100 Mass. 167. 
 
 2 Drevon v. Drevon, 34 L. J. Ch. ^ Wayne v. Greene, supra. 
 
 129; The Venns, 8 Cranch, 253; Burn- ' Sharpe v. Crispin, supra; Hallet 
 
 ham V. Eangely, 1 Wood. & M. 7 ; v. Bassett, supra. 
 
 Bead v. Bertrand, 4 Wash. C. Ct. 514 ; ^ Sharpe v. Crispin, supra. 
 
 Prentiss v. Barton, 1 Brock. 389 ; Du- * Id. ; Wayne v. Greene, supra. 
 
 puy V. Wurtz, 53 N. Y. 556 ; Hegeman i" Hallet v. Bassett, supra ; and see 
 
 V. Fox, 31 Barb. 475 ; Dupuy v. Sey- Ommanney v. Bingham, supra. 
 
 mour, 64 id. 156; State v. Frest, 4 ^^ Hallet v. Bassett, supra; Wayne 
 
 Harr. (Del. ) 558; Hairston i>. Hairston, v. Greene, supra. Whether married 
 
 27 Miss. 704; Verret u. Bonvillain, 33 or single. Barton v. Ii-asburgh, 3 Vt. 
 
 La. An. 1304. 159. 
 
 ' Ommanney v. Bingham, Eoh. Pers. ^'^ Hoskins v. Mathews, 8 De G. M. 
 
 Sue. 468 ; Lord o. Colvin, i Drew. & G. 13. 
 
 366; Cookrell V. Cockrell, 2 Jur. (n. s.) i' Hallet ». Bassett, supra. 
 
 727; Sharpen. Crispin, L. E. 1 P. & D. " Abington v. North Bridgewater, 
 
 611 ; Eichmond v. Vassalborough, 5 23 Pick. 170; Blanchard v. Steams, 
 
 Oreenl. 396 ; Crawford t>. Wilson, 4 5 Met. 298 ; Hallet v. Bassett, su- 
 
 Barb. 504; Guier v. O'Daniel, 1 Binn. pra ; Dauphin Co. v. Banks, 1 Pears. 
 
 349, note. 40 ; Sanderson v. Ralston, 20 La. An. 
 
 1 Wayne v. Greene, 21 Me. 357. 312. 
 
 5 Ommanney v. Bingham, supra ; i 34 L. J. Ch. 129. 
 470 
 
§ 370.] CRITERIA OP DOMICIL. [CHAP. XX. 
 
 give one, of domicil, what are the acts which are sufficient to 
 constitute a change of domicil ? It leaves you much in the 
 same difficulty even as you are in as to its definition. I think 
 the court has been under the necessity of doing this in all 
 cases, taking all the acts of every kind, more or less impor- 
 tant, throughout the man's life, upon which you can have 
 evidence; taking not only his acts, but his declarations va- 
 leant quantum, and then judging whether the testator did 
 or did not mean to give up his domicil of origin and adopt a 
 new one. I may say with regard to the evidence of acts, 
 there is no one circumstance that has ever been brought to 
 the attention of the court in any of the cases, as to which 
 I think it may not be truly said that in some of the cases 
 that occur, that act or that circumstance which has been 
 treated as of great importance, in other cases that same act 
 or circumstance has been treated as of very little importance. 
 For example, the first fact generally brought forward, and, of 
 course, which is brought forward and relied upon in this case, 
 is length of residence. Length of residence has in many 
 cases, both by English and foreign jurists, been considered a 
 very important ingredient in the question ; and in other cases 
 it has been considered of as little importance, that is, as com- 
 pared with and brought into connection and contact with 
 other circumstances of which evidence is given in the case. 
 I think with regard to that point, the true conclusion is this : 
 not that any one act or any one circumstance is necessarily 
 per se of vast importance and other circumstances of little 
 importance, but it is a question what is the relative impor- 
 tance of the different acts; whether some acts tending one 
 way are of greater weight than those tending the other as to 
 the animus manendi, or the animus revertendi, or the animus, 
 as to changing domicil. I think this also may be said : there 
 is no act, no circumstance in a man's life, however trivial it 
 may be in itself, which ought to be left out of consid- 
 eration in trying the question whether there was an inten- 
 tion to change the domicil. A trivial act might possibly 
 be of more weight with regard to determining this question, 
 than an act which was of more importance to a man in his 
 
 lifetime." 
 
 471 
 
R 3711 THE LAW OP DOMICIL. [CHAP. XX. 
 
 § 371. Probabiles Conjecturse. — John Voet^ remarks, with 
 reference to the determination of domicil : " Quoties autem 
 non certo constat, ubi quis domicilium constitutum habeat, et 
 an animus sit inde non discedendi, ad conjecturas probabiles 
 recurrendum, ex variis circumstantiis petitas, etsi non omnes 
 seque firmse, aut singulae solse considerate non aeque urgentes 
 sint, sed multum in iis valeat judicis prudentis et circum- 
 specti arbitrium." 
 
 In this connection Kindersley, V. C.,^ may again be quoted : 
 " There must be the act, and there must be the intention ; and 
 in order to decide the question of intention there are undoubt- 
 edly a number of circumstances which are considered by the 
 law of this country, and probably by the law of almost all 
 other countries, as affording certain indicia or criteria, from 
 which you may infer the intention one way or the other. 
 But it is obvious that some of the circumstances may have a 
 tendency one way and some the other way ; and very often it 
 is extremely difficult to come to a determination among the 
 conflicting tendencies of the different circumstances on the 
 different indicia of intention. ... In all questions of this 
 sort you are obliged to resort to what are called by some of 
 the jurists probabiles eonjeeturce (probable conjectures) as to 
 
 1 Ad Pand. 1. 5, 1. 1, no. 97. With Zangeras says that in the absence of 
 
 respect to the criteria of domicil, Do- express declarations made before the 
 
 nellus is frequently ijuoted. He says cause of action has arisen, the animus 
 
 (De Jure Oivili, 1. 17, o. 12, p. 978, no. is to be ascertained " ex conjecturis et 
 
 60) : " Quod si dubitabitur, quis sit presumptionibus " (De Except, pt. 2, 
 
 animus in ea re cujusque, de eo duabus c. 1, no. 14 et seq. ) ; and among most 
 
 his ex rebus aestimandum est ; ex muniis conspicuous grounds of conjecture he 
 
 vitsequotidianse, qusequisalicubiobeat; instances seven; viz., (1) the location 
 
 turn ex ordine et conditione personse. of the "lares" of the Romans, or the 
 
 Ex muniis vitse ; si quis aliquo ia loco "fire and light" of the Germans ; (2) 
 
 ea faciat, quem facere ejus loci cives et the possession of the major part of one's 
 
 inoolse sclent : puta, si in eo loco semper property in any place ; (3) the sale of 
 
 agat ; in Ulo emat, vendat, contrahat ; one's property in the place of former 
 
 in eo foro, balneis, et aliis locis com- domicil and emigration with one's family 
 
 munibus utatur; ibi festos dies celebret; to another city or country ; (4) constant 
 
 omnibus denique commodis loci fruatur, residence in a place ; (5) obtaining citi- 
 
 ut Ulpiani desoriptio est in leg. ejtis 27 zenship ; (6) in the case of a secular 
 
 % 1 t>. ad municip. Ex conditione priest, obtaining » benefice which re- 
 
 personse ; si oujus ea conditio sit, prop- quires residence ; and (7) in the case of 
 
 ter quam eum in aliquo loco semper a woman, marriage, 
 
 consistere necesse sit. Cui rei exemplo ^ In Cookrell v. Cookrell, 2 Jur. (n.s.) 
 
 sunt tres ; senator, miles, relegatus." 727. 
 
 472 
 
§ 374.J CRITERIA OP DOMICIL. [CHAP. XX. 
 
 what his intention was, to be inferred from circumstances. 
 Perhaps the more correct expression would be ' probable pre- 
 scriptions,' rather than 'probable conjectures,', though those 
 prescriptions are in great degree founded upon conjectural 
 reasoning upon the circumstances." 
 
 § 372. Facts to be construed untechnically and according to 
 their Natural Import. — Lord Cranworth, speaking on this sub- 
 ject, in Maxwell v, McClure, said the question of domicil 
 turns entirely " upon the facts of the case, and upon the con- 
 struction which, as men of the world, we should put upon the 
 acts of parties as disclosed in the evidence." ^ Demolombe,^ 
 after pointing out a few of the usual indicia of domicil, con- 
 cludes : " It belongs, then, to the magistrate to appreciate the 
 importance, the priority, the isolation or the concourse, and 
 the force, more or less probative, of all these elements con- 
 stitutive of the domicil of each one, regard being had to his 
 particular position and personal habits." 
 
 § 373. Certain Facts usually entitled to more Weight than 
 others. — But whatever difficulty there may be in laying down 
 any positive rule which will fit all cases, or which will give to 
 certain facts, under all circumstances, greater probative force 
 tlian to others, courts and jurists have laid stress on certain 
 facts, either when standing by themselves or when corrobo- 
 rated by, or opposed to, certain other facts, leaving their force 
 to be strengthened, diminished, or entirely destroyed in other 
 cases by the appearance of new circumstances. Indeed, the 
 great bulk of what has been said in the decided cases has been 
 by way of appreciation of given facts as determinative of in- 
 tention ; and while they are to be used with caution and tested 
 thoroughly by the circumstances of each particular case, cer- 
 tain approximate values have been set upon certain things as 
 indicia of intention, or, as they are sometimes called, criteria 
 of domicil. 
 
 § 374. The Definitions of Domicil in the Roman Law mainly 
 Formulae of Evidence. — The so-called definitions of domicil 
 which are to be found in the Eoman law are for the most part 
 formulce for the ascertainment of the necessary element of in- 
 
 1 6 Jur. (n. s. ) 407. 345. See also Pothier, Intr. aux Cout. 
 
 2 Cours de Code Napoleon, t. 1, no. d'Orleans, no. 15. 
 
 473 
 
I 374.] THE LAW OP DOMICIL. [CHAP. XX, 
 
 tention; and while they are largely figurative, they point out 
 certain criteria of fact, which doubtless must have had a much 
 more definite meaning to the Roman mind than to ours. Thus, 
 the definition of the Code i puts the location of the " lares " 
 and " rerum ac fortunarum suarum summa " as tests : " In 
 eodem loco singulos habere domicilium, non ambigitur, ubi 
 quis larem, rerumque ac fortunarum suarum summam con- 
 stituit, unde rursus non sit discessurus, si nihil avocet: unde 
 cum profectus est, peregrinari videtur : quod si rediit, pere- 
 grinari jam destitit." 
 
 Alfenus Varus ^ puts the location of the " sedes et tabulae " 
 and the " suarum rerum constitutio " as the test : " Sed de 
 ea re constitutum esse, earn domum unicuique nostrum debere 
 existimari, ubi quisque sedes et tabulas haberet,' suarumque 
 rerum constitutionem fecisset." 
 
 But Ulpian,^ most of all, lays down a formula of criteria as 
 follows : " Si quis negotia sua non in colonia, sed in municipio 
 semper agit, in illo vendit, emit, contrahit, eo in foro, balneo, 
 spectaculis utitur : ibi festos dies celebrat : omnibus denique 
 municipii commodis, nullis coloniarum, fruitur, ibi magis ha- 
 bere domicilium, quam ubi colendi causl diversatur." 
 
 1 Code 10, t. 39, 1.7. « Dig. 50, 1. 16, 1. 203. = Id. t. 1, 1. 27, § 1. 
 
 474 
 
§ 376.] RESIDENCE AND TIME. [CHAP. XXI. 
 
 CHAPTER XXI. 
 
 CRITERIA OP DOMICIL (^continued}, — RESIDENCE AND LAPSE OP 
 
 TIME. 
 
 § 375. Presence at a Place prima facie Evidence of Domicil 
 there. — When it becomes necessary to consider whether or 
 not a person was domiciled at a given place, the most usual 
 and obvious fact which meets us js personal presence. If we 
 know nothing of a man save that at a given time he was at 
 a particular place — his circumstances and antecedents being 
 wholly unknown — and it is necessary to determine, for some 
 purpose or other, where he was then domiciled, we cannot but 
 conclude that he was domiciled where he was found. Lord 
 Thurlow, in Bruce v. Bruce,^ said : " A person's being at a 
 place is prima facie evidence that he is domiciled at that place, 
 and it lies on those who say otherwise to rebut that evidence." 
 Lord Loughborough used similar language in Bempde v. John- 
 stone : ^ " The actual place where he is, is prima facie to a great 
 many given purposes his domicil." And, apparently using 
 residence in the sense of mere physical presence. Sir John 
 NichoU remarks, in Stanley v. Bernes : ^ " Prima facie, he is 
 domiciled where he is resident." 
 
 § 376. Such Prima Facies subject to Rebuttal. — But it is 
 apparent that this is the merest prima facies, and is not only 
 susceptible of explanation, but is easily destroyed. Lord Thur- 
 low adds to his remarks above quoted : " It may be rebutted, 
 no doubt : a person travelling ; on a visit, — he may be there 
 for some time on account of his health or business ; a soldier 
 may be ordered to Flanders, and be detained at one place 
 there for many months ; the case of ambassadors, etc." And 
 Lord Loughborough adds to his remarks above given : " You 
 
 1 Reported in a note to Marsh v. ^3 Ves. Jr. 198. See also Wharton, 
 Hutchinson, 2 Bos. & P. 229. Confl. of L. § 66 a. 
 
 8 3 Hagg. Eccl. 373. 
 
 475 
 
S 377.] THE LAW OP DOMICIL. [CHAP. XXI. 
 
 encounter that, if you show it is either constrained, or from the 
 necessity of his affairs, or transitory, — that he is a sojourner; 
 and you take from it all character of permanence." 
 
 But in the case which we have supposed it is not even neces- 
 sary to explain the character or intention of the presence, if 
 it can but be shown that the person whose domicil is in ques- 
 tion was formerly domiciled elsewhere. In event of such proof, 
 the presumption of the continuance of such domicil would 
 apply, and wholly destroy the effect of the bald fact of bodily 
 presence elsewhere.^ The principle seems to have been so 
 understood in Bradley v. Lowery,^ where Johnston, Ch., after 
 citing the remarks of Lords Thurlow and Loughborough and 
 Sir John NichoU, said : " That is to say, if we had never been 
 apprised that the testator had before been elsewhere domiciled, 
 we should be bound to consider him domiciled in Alabama, 
 from the mere fact of finding him there." 
 
 § 377. Residence as Evidence of Domicil. — It seldom hap- 
 pens, however, that the only criterion presented is the naked 
 fact of presence at a place. Such presence usually appears 
 under circumstances which show it to be more or less habitual 
 and continuous ; in which case it rises to the degree of resi- 
 dence. Dicey 1 has defined residence as "habitual physical 
 presence in a place or country ; " which definition, although 
 not entirely correct, is approximately so, and sufficiently so for 
 the present purpose. Thus understood, residence corresponds 
 with the " assidua habitatio " ^ or " conversatio assidua " ^ of the 
 Civilians. 
 
 It is laid down in many cases that residence is prima facie 
 evidence of domicil,* or, in other words, that the fact that a 
 
 1 See on this subject, Dicey, Dom. ' Zangems, De Except, pt. 2, c. 1, 
 pp. 116-118, and infra, § 377, note 4. passim ; Corvinus, op. cit. p. 193. 
 
 2 Speer's Eq. 1. * Bempde ». Johnstone, supra ; Bell 
 1 Dom. p. 76. He adds: "The word, v. Kennedy, L. E. 1 Sch. App. 307; 
 
 however, ' habitual,' must not mislead. Stanley v. Bemes, 3 Hagg. Eccl. 373 ; 
 
 "What is meant is not presence in a place De Bonneval v. De Bonneval, 1 Curteis, 
 
 or country for a length of time, but 856 ; King v. Foxwell, L. K. 3 Ch. D. 
 
 presence there for the greater part of the 518 ; The Venus, 8 Cranch, 258; Ennis 
 
 time, be it long or short, which the per- v. Smith, 14 How. 400 ; Mitchell v. 
 
 son using the term contemplates." United States, 21 Wall. 350 ; Johnson 
 
 ^ Mascardns, De Probat. concl. 535, v. Twenty-one Bales, 2 Paine, 601, s. c. 
 
 no. 8 ; Corvinus, opinion quoted in Van Ness, 5; Kemna v. Brockhaus, 10 
 
 Henry, For. Law, p. 194. Biss. 128 ; Hart v. Lindsey, 17 N. H. 
 476 
 
§ 377.] EESIDENCB AND TIME. [CHAP. XXI. 
 
 man is habitually and continuously present at a place is evi- 
 dence that he intends to remain there permanently. But 
 beyond this it is difficult to deduce any general principle from 
 the decided cases, or from the reasoning by which they are sup- 
 ported. It is apparent that little importance can be attached 
 to residence, if at the time to which the inquiry concerning 
 domicil is directed, residence has just begun, or if it is under 
 circumstances which are in themselves equivocal or which tend 
 to show animus revertendi ; as in the case of a public officer, an 
 ambassador or a consul, a soldier, an exile or a prisoner, or 
 the like, or in the case of a married man who, being previously 
 domiciled elsewhere, comes to a country without his wife and 
 family, and at the time inquired about has spent but a short 
 time there, boarding at hotels, either without any apparent 
 business, or with business of short or doubtful duration. On 
 the other hand, if residence is long continued and is accom- 
 panied by other circumstances indicating intention to remain 
 permanently, it is of great weight in determining the question 
 of animus manendi. This is no more than saying that resi- 
 dence is by itself only a single fact, which may or may not 
 indicate animus manendi, according to circumstances.^ And 
 
 235; Elbers & Krafts v. Ins. Co. 16 tenham, in Munro v. Munro, 7 CI. & F. 
 Johns. 128 ; Crawford v. Wilson, 4 842, and Lord Kingsdown, in Moor- 
 Barb. 504; Vischer v. Vischer, 12 id. house v. Lord, 10 H. L. Cas. 272. It 
 640 ; Ames v. Duryea, 6 Lans. 155 ; results, of course, that the burden of 
 Eyal V. Kennedy, 40 N. T. Super. Ct. proof is upon those who deny residence 
 347; Cadwallader v. Howell & Moore, to be domicil. Ennis v. Smith, supra; 
 3 Harr. (N. J.) 138 ; Guier v. O'Daniel, Bumham v. Rangeley, supra; Prentiss 
 1 Binn. 349, note; Carey's Appeal, 75 v. Barton, supra; Ryal v. Kennedy, 
 Pa. St. 201; Hindman's Appeal, 85 id. supra; State v. Frest, supra. But this 
 466; States. Frest, 4 Harr. (Del.) 558; burden is discharged by showing that 
 Home V. Home, 9 Ired. 99 ; Bradley the person was formerly domiciled else- 
 V. Lowery, Spear's Eq. 1 ; Re Toner, 39 where ; in such case the presumption 
 Ala. 454; Kellar v. Baird, 5 Heisk. 39 ; being that the former domicil continues. 
 Hairston v. Hairston, 27 Miss. 704 ; Maxwell v. McClure, 6 Jur. (n. s.) 407; 
 Johnson v. Turner, 29 Ark. 280; Alter Bell v. Kennedy, L. E. 1 Sch. App. 307; 
 V. Waddel, 20 La. An. 246 ; Mills v. Hodgson ». De Beauchesne, 12 Moore 
 Alexander, 21 Tex. 154; Ex parte P. C. C. 285 ; Mitchell i^. United States, 
 Blumer, 27 id. 735; Dow v. Gould, 31 21 Wall. 350 ; Brewer v. Linnaeus, 36 
 Cal. 629 ; Miller ■». Thompson, 2 Cong. Me. 428 ; Nixon ■». Palmer, 10 Barb. 
 El. Cas. 120. See also Story, Confl. of 175 ; Ames v. Duryea, supra ; Quinby 
 L. § 46; Dicey, Dom. p. 122 a seq.; ii. Duncan, 4 Harr. (Del.) 383; Glover 
 Mascardus, De Probat. concl. 535, no. v. Glover, 18 Ala. 367 ; and see supra^ 
 8 ; Demolombe, Cours de Code Napo- § 151. 
 leon, t. 1, no. 345 ; and see Lord Cot- ^ See Munro v. Munro, 7 CI. & Fin. 
 
 477 
 
§ 378.] THE LAW OP DOMICIL. [CHAP. XXI. 
 
 this is substantially all that can be said of it ; for it will be 
 found that whenever particular stress has been laid upon resi- 
 dence, it has been either because it was long continued or 
 because it was accompanied by other circumstances which 
 tended to show animus manendi. 
 
 § 378. Id. Wayne, J., in Ennis v. Smith, — In some caseS 
 strong expressions have been used with regard to residence. 
 In Kosciusko's case/ Wayne, J., used language which, per- 
 haps, states the effect of residence too strongly : " But 
 what amount of proof is necessary to change a domicil of 
 origin into a prima facie domicil of choice. It is residence 
 elsewhere, or where a person lives out of the domicil of 
 origin. That repels the presumption of its continuance, 
 and casts upon him who denies the domicil of choice the 
 burden of disproving it. Where a person lives, is taken 
 prima facie to be his domicil until other facts establish the 
 contrary. It is difficult to lay down any rule under which 
 every instance of residence could be brought, which may make 
 a domicil of choice. But there must be to constitute it actual 
 residence in the place, with the intention that it is to be a 
 principal and permanent residence. That intention may be 
 inferred from the circumstances or condition in which a per- 
 son may be as to the domicil of his origin, or from the seat of 
 his fortune, his family, and pursuits of life. A removal which 
 does not contemplate an absence from the former domicil for 
 an indefinite and uncertain time is not a change of it. But 
 when there is a removal, unless it can be shown or inferred 
 from circumstances that it was for some particular purpose, 
 expected to be only of a temporary nature, or in the exer- 
 cise of some particular profession, ofiice, or calling, it does 
 change the domicil. The result is, that the place of resi- 
 dence is prima facie the domicil, unless there be some 
 motive for that residence not inconsistent with a clearly 
 
 842; Bruce v. Bruce, 2 Bos. & P. 229, Home v. Home, 9 Ired. 99 ; Be Toner, 
 
 note ; Bempde v. Johustone, 3 Ves. Jr. 39 Ala. 454 ; Kellar v. Baird, 5 Heisk. 
 
 198; Moorhouse 1). Lord, 10 H. L. Cas. 39; Johnson ■». Turner, 29 Ark. 280; 
 
 272, 292; DeBonnevalw. DeBonneval, Mills d. Alexander, 21 Tex. 154 ; and 
 
 1 Curteis, 856; Sears v. Boston, 1 Met. also authorities in last note. 
 250; Dupuy v. Wurtz, 53 N. Y. 656 ; i Ennis v. Smith, 14 How. 400. 
 Guier v. O'Daniel, 1 Binn. 349, note ; 
 
 478 
 
§ 380.] RESIDENCE AND TIME. [CHAP. XXI. 
 
 established intention to retain a permanent residence in 
 another place." 
 
 But it must be observed that in this case other facts besides 
 residence tended to show animus manendi. Kosciusko had 
 resided nineteen years in France, under circumstances and 
 with declarations showing, on the one hand, his abandonment 
 of his domicil of origin, and, on the other, his intention to re- 
 main in Prance permanently, or at least until the happening 
 of an improbable event. 
 
 § 379. Id. Residence by itself Equivocal. — But, on the other 
 hand, in Isham v. Gibbons,^ it was held that naked residence 
 amounts to nothing unless accompanied with evidence of in- 
 tention; and in Jopp v. Wood,^ it was said to be at least 
 equivocal. In the latter case, Turner, L. J., said : " Although 
 residence may be decisive as to the factum, it cannot, when 
 looked at as to the animus, be regarded otherwise than as an 
 equivocal act. The mere fact of a man residing in a place 
 different from that in which he has been before domiciled, 
 even although his residence there may be long continuing, 
 does not of necessity show that he has elected that place as 
 his permanent and abiding home. He may have taken up 
 and continued his residence there for some special purpose, or 
 he may have elected to make the place his temporary home. 
 But domicil, although in some of the cases spoken of as a 
 home, imports an abiding and permanent home, and not 
 a mere temporary one." 
 
 § 380. Id. Sir Herbert Jeuner, in De Bonneval v. De Bon- 
 neval. — In De Bonneval v. De Bonneval,^ Sir Herbert Jenner 
 said : " I apprehend that it being prima facie evidence only, 
 that where a person resides, there he is domiciled, it is neces- 
 sary to see what was the domicil of origin of the party. Hav- 
 ing first ascertained the domicil of origin, that domicil prevails 
 till the party shall have acquired another, with an intention 
 of abandoning the original domicil. That has been the rule 
 since the case of Somerville v. Somerville. Another principle 
 is, that the acquisition of a domicil does not simply depend 
 upon the residence of the party ; the fact of residence must 
 
 1 1 Bradf. 69. « 4 De G. J. & S. 616. ' 1 Curteis, 856. 
 
 479 
 
R 3811 THE LAW OP DOMICIL. [CHAP. XXI. 
 
 be accompanied by an intention of permanently residing in 
 the new domicil, and of abandoning the former; m other 
 words, the change of domicil must be manifested, animo et 
 facto, by the fact of residence and the intention to abandon. 
 A third principle is, that the domicil of origin having been 
 abandoned, and a new domicil acquired, the new domicil may 
 be abandoned and a third domicil acquired. Again, the pre- 
 sumption of law being that the domicil of origin subsists 
 until a change of domicil is proved, the onus of proving the 
 change is on the party alleging it, and this onus is not dis- 
 charged by merely proving residence in another place, which 
 is not inconsistent with an intention to return to the original 
 domicil ; for the change must be demonstrated by fact and 
 intention." 
 
 The rule laid down by Lord Alvanley, in Somerville v. Som- 
 erville,^ although his language is somewhat obscure, would 
 seem to mean that clear proof must be made of abandon- 
 ment of domicil of origin before any value can be attached to 
 residence. 
 
 § 381. Id. Lord Westbury, in Bell v. Kennedy, and Sir John 
 NichoU, in Moore v. Darrell. — In Bell V. Kennedy,^ Lord West- 
 bury used language in marked contrast with that of Wayne, 
 J., above quoted. Lord Westbury said : " Although residence 
 may be some small prima facie proof of domicil, it is by no 
 means to be inferred from the fact of residence that domicil 
 results ; even although you do not find that the party had any 
 other residence in existence or in contemplation." In this 
 case there was sufficient proof of abandonment of domicil of 
 origin, but it also appeared that residence was in pursuance 
 of a contingent animus manendi. 
 
 In Moore v. Darrell and Budd,^ Sir John NichoU said : " Ca- 
 ses of domicil do not depend upon residence alone, but on a 
 
 2 5 Tes. Jr. 750. "The third rule not have contemplated the co-existence 
 
 I shall extract is, that the . . . domi- of two domicils is evident from his dec- 
 
 cil of origin is to prevail until the laration that a man can have only one 
 
 party has not only acquired another, but domicil for the purpose of succession, 
 
 has manifested and carried into execution which was the matter involved in the 
 
 an intention of abandoning his former case. 
 
 domicil and taking another as his sole l L. E. 1 Sch. App. 807, 321. 
 domicil." That Lord Alvanley could ^ 4 Hagg. Eccl. 346, 852. 
 
 480 
 
§ 382.] RESIDENCE AND TIME. [CHAP. XXI. 
 
 consideration of all the circumstances of each particular 
 case." 
 
 § 382. Length of Residence or Time. — As the value of 
 residence as evidence of intention depends largely upon the 
 length and the manner of the residence, it is proper to con- 
 sider these elements somewhat in detail ; and, 
 
 First, as to length of residence or time. Length of resi- 
 dence as a substitute for intention has already been considered 
 in its appropriate place ; ^ it is proposed now to discuss it as 
 evidence of intention. If a man leaves his domicil of origin, 
 and going into another country dwells there for a considerable 
 length of time, — for ten, twenty, or thirty years, — it needs no 
 authority for saying that, in the absence of explanatory evi- 
 dence, he will be presumed to intend to remain there perma- 
 nently. Great weight has therefore been attached by the 
 authorities to length of residence as evidence of animus 
 manendi ;'^ not only where it is unexplained and uncontra- 
 dicted by other facts, but also in many cases where it is 
 contradicted by facts which would otherwise be taken as in- 
 dicating animus revertendi. But if the purpose of residence, 
 however long, appears to be consistent with animus revertendi 
 (as in the case, for example, of an ambassador or consul), the 
 presumption of animus manendi fails, and the stronger pre- 
 sumption of the continuance of the former domicil prevails ; 
 and, a fortiori, if sufficient evidence of animus revertendi 
 
 1 Supra, § 135 et seq. 597 ; The Ann Green, 1 Gall. 274 ; 
 
 2 Moorhouse v. Lord, 10 H. L. Cas. White v. Brown, 1 "Wall. Jr. C. Ct. 
 272 (per Lord Kingsdown) ; Anderson 217 ; Johnson v. Twenty-one Bales, 2 
 V. Laneuville, 9 Moore P. C. C. 325 ; Paine, 601, s. c. Tan Ness, 5 ; Knox v. 
 Hodgson 17. De Beauehesne, 12 id. 285 ; 'Waldoborough, 3 Greenl. 455 ; Hulett 
 Stanley v. Bernes, 3 Hagg. Eccl. 373 ; v. Hulett, 37 "Vt. 581; Easterly i>. Good- 
 Lyall V. Paton, 25 L. J. Ch. 746 ; Dre- win, 35 Conn. 279 ; Elbers k Krafts 
 von V. Drevon, 34 id. 129; Lord v. v. Ins. Co. 16 Johns. 128 ; Dupuy v. 
 Colvin, 4 Drew. 366; Cockrell v. Cock- Wuitz, 53 N. Y. 556 ; Hood's Estate, 
 rell, 2 Jur. (n. s.) 727; Attorney-Gen- 21 Pa. St. 106; Bradley v. Lowery, 
 eral v. Kent, 1 Hurl. & Colt. 12; Speer's Eq. 1 ; Hairston ■». Hairston, 27 
 Bremer v. Freeman, 1 Deane, 192, on Miss. 704 ; D'Argentre, Consuet. Brit, 
 appeal, 10 Moore P. C. C. 306; Hal- art. 449; Pothier, Intr. aux Gout. d'Or- 
 dane v. Eckford, L. E. 8 Eq. Cas. 631 ; l&ns, nos. 15 and 20 ; Henry, For. Law, 
 Brunei v. Brunei, L. E. 12 Eq. Cas. pp. 208, 209 ; Phillimore, Dom. no. 259 
 298; King o. Foxwell, L. E. 3 Ch. D. etseq.; Id. Int. L. vol. iv. no. 299 et seq.; 
 618; Doucet D. Geoghegan, L. E. 9 Ch. Dicey, Dom. p. 123; and see infra, 
 D. 441 ; Gillis v. Gillis, Ir. E. 8 Eq. § 97 et seq. 
 
 31 481 
 
§ 383.] THE LAW OF DOMICIL. [CHAP. XXI. 
 
 appear, the presumption from time, of course, fails. Length 
 of time is, therefore, strong evidence of intention,^ but by no 
 means conclusive.* 
 
 § 388. Id. Roman Law and Continental Jurists. — This crite- 
 rion was so conspicuous as to call forth a declaration concern- 
 ing it in the Roman law ; ^ namely, in the case of the student, 
 concerning whom it was declared, by the letter of Hadrian, 
 that he was not to be supposed to be domiciled at the place of 
 his studies, unless, ten years having elapsed, he had set up for 
 himself a habitation there. Concerning the precise meaning 
 and effect of this provision (which has been applied by Modern 
 Civilians to persons in general), there has been much dis- 
 cussion ; 2 some of the Civilians,^ among whom were Accursius 
 and Baldus, apparently holding that residence in a place for 
 ten years created a legal presumption of domicil there ; while 
 others, including Alciatus,* Mascardus,^ Menochius,^ Zangerus,'' 
 Burgundus,^ Molinaus,® and, apparently, BartoluSj^" held that, 
 while decennial residence was evidence of the establishment 
 of domicil, it was not conclusive, but was to be left, together 
 with all the other facts of the case, to the discretion of the 
 judge to determine " according to the condition and quality 
 of the person and the place." ^^ 
 
 ' See cases cited in last note. set forth ty Zangerus, De Except, pt 2, 
 
 * Hodgson V. De Beauchesne, supra; c. 1, no. 45 et seq. ; Mascardus, De Pro- 
 
 Jopp 1). Wood, 4 De G. J. & S. 616 ; bat. ooncl. 535, no. 6 et seq. ; Lauteibach, 
 
 Stanley v. Bernes, supra; Collier v. De Domicilio, § 27. See also Philli- 
 
 Rivaz, 2 Curteis, 855; Re Capderielle, more, Dom. no. 261 ; Id. Int. L. vol. 
 
 2 Hurl. & Colt. 985 ; Cockrell v. Cock- iv. no. 301. Pliillimore, however, seems 
 
 rell, supra; Doucet v. Geoghegan, su- to he in error with regard to the opinion 
 
 pra ; Bremer v. Freeman, supra ; Gil- of Bartolus. 
 
 lis ». Gillis, sttpra; The Ann Green, ^ gee Zangerus, De Except, pt. 2, 
 
 supra; White v. Brown, supra ; Knox c. 1, no. 45 et seq., and Mascardus, De 
 
 V. Waldoborough, supra ; Hulett v. Prohat. conol. 535, no. 6 et seq. 
 Hulett, supra; Easterly v. Goodwin, * In Dig. 50, t. 16, 1. 203, De Ver- 
 
 supra; Bank v. Bascom, 35 Conn. 351; horum Significatione. 
 Dupuy V. Wurtz, supra ; Visoher v. 5 Loc. cil. 
 
 Vischer, 12 Barh. 640; Home «. Home, 6 Qe Arhitr. Jud. lib. 2, cent. 1, 
 
 9 Ired. 99 ; Bradley v. Lowery, supra ; cas. 86. 
 
 Eagan v. Lumsden, 2 Disn. 168; Kellar ' De Except, pt. 2, c. 1, no. 47. 
 II. Baird, supra; Dicey, Dom. pp. 123, » Consuet. Fland. Tract. 2, no. 34. 
 124 ; Wharton, Conil. of L. § 66 ; and » Opera, t. 2, p. 903, ed. 1681, cons, 
 
 see infra, §§ 388 et seq., 393 et seq. 31, no. 21. 
 
 1 Code 10, t. 89, 1. 2. See supra, w In Code 10, t. 39, 1. 2. 
 
 § ^> "°'^ 1- " Zangerus, loc. cU. ; Mascardus, loc. 
 
 2 The views of different writers are cU. nos. 9 and 10 ; Lauterbach, De 
 
 482 
 
§ 384.] 
 
 RESIDENCE AND TIME. 
 
 [chap. XXI. 
 
 § 384. Id. id. — Most of the Civilians also took the position 
 that, even in the case of the student, a domicil might be acquired 
 without decennial residence. Burgundus ^ says : " Nee ipsi 
 qui studiorum causi aliquo loco morantur, domicilium ibi ha- 
 bere creduntur, nisi decern annis transactis eo loco sedes sibi 
 constituerint. Sed hoc intellige, re dubia, ut puta quod ux- 
 orem ibi duxerit, possessiones emerit, professionem adepti 
 sint. Alioquin quoties de contraria voluntate constat, decen- 
 nali spatio domicilium non constituitur. Ideoque mercenarius, 
 studiosus, mercator, quamdiu animum redeundi habent, domi- 
 cilium acquirere non possunt. Animum verd redeundi habere 
 non videntur, qui transportatis bonis, quae in patria habebant, 
 alio domicilium transferunt, sicut nee ille, qui in alia regione 
 degens, bona ibi emit, privilegium civitatis impetrat, uxorem 
 ducit, decennii spatio habitat ; sed hoc ultimum in scolastico 
 non aliter accipiendum erit, quam si aliquo alio signo per- 
 severandi animum demonstret. Quamdiu enim liquet in 
 patriam meditari reditum, et absoluta studiorum periodo 
 remigrare velle, nuUo temporis spatio domicilium constituitur. 
 Domicilium ergo vel solo memento figi potest, si appareat de 
 voluntate quas ex conjecturis non inepte probabitur." Cor- 
 vinus says : ^ " Nee etiam sola habitatio per se, etiamsi sit 
 longissimi temporis, domicilium constituit. Qui tamen per 
 
 Domicilio, § 27. The latter thus 
 speaks of the controversy on this sub- 
 ject : " Quodnam aut«m temporis spa- 
 tium, aut qnantus annorum numerus 
 ad hunc diuniitatem requiratur, doc- 
 tores valde inter se digladiantur. Ple- 
 riqne judicis arbltrio id relinquunt, ut 
 ex loci et personarum conditione ac 
 qualitate vel breviori vel longiorl ter- 
 mino dijudicet. [Zangerns and Meno- 
 chius are here cited, and compared with 
 Mascardus and Maevius.] Quidam ex- 
 istimant etiam solo decennio domicilium 
 contrahi, et ad hoc probandum addu- 
 cunt(2 C. deincolis), cui banc rationem 
 jungunt, quod per diutumum tempus, 
 decern scilicet annorum, domicilium 
 prsescriptum esse censeatur, Ernest. 
 Cothm. vol. i. resp. 21, b. 4 etWarin- 
 ser, exerc. i, q. 10, p. m. 152. Qui 
 
 etiam argumentis Zangeri ita respon- 
 det : ' Non imus inficias, minori etiam 
 tempore domicilium constitui posse ita 
 tamen, ut alise conjecture et circum- 
 stantise tacite contracti domicilii con- 
 cuiTant. Tunc autem non tam ex 
 temporis ratione, quam potius ex ipsis 
 conjecturis et circumstantiis tacite con- 
 tractum aestimabitur. Verum imprse- 
 sentiarum quando queritur, an decen- 
 nium, ad contrahendum domicilium 
 necessarium sit ; aliis conjecturis mi- 
 nime opus est, sed sufficit solius temporis 
 decursus.' Sed priorem sententiam tu- 
 tiorum esse arbitratur etiam D. Carp- 
 sov. 1. 2, t. 2, resp. 22, no. 5." 
 
 1 Consuet. Fland. Tract. 2, no. 34. 
 
 « Jur. Eom. 1. 10, t. 39, pt. 2, 
 p. 45 b. 
 
 483 
 
S 386.] THE LAW OF DOMICIL. [CHAP. XXI. 
 
 decern annos alicubi moratur, prsesumitur ibi domicilium ele- 
 gisse et incola existimatur. Nisi de occasione temporaria et 
 animo revertendi ad pristinum locum constat." Grotius, in 
 an opinion quoted by Henry ,3 from the "Hollandsche Con- 
 sultatien," argues : " Neither, again, is it any objection ' quod 
 decennio quseratur domicilium ; ' since it does not thence fol- 
 low ' quod minore tempore non quseratur ; sed quod in dubio 
 decennium per se sufficiat ad probandum domicilium. Alioqui 
 si de voluntate appareat, vel uno momento domicilium consti- 
 tutum intelligitur.' " D'Argentrfe * remarks : " Justa prae- 
 sumtio est de eo qui totos decem annos alicubi desedit ; nam 
 nulla tempora domicilium constituunt aliud cogitanti." Sa- 
 vigny 5 says : " The ten years are indeed only a presumption of 
 a purpose of constant residence." 
 
 § 385. Id. id. — It is clear, therefore, that, on the one hand, 
 whatever importance may have been attached to decennial 
 residence, the presumption arising from it was not a conclu- 
 sive presumption of law, but one of fact merely, which gave 
 way to other facts tending to show animus revertendi; and, on 
 the other, ten years' residence was not necessary for the es- 
 tablishment of domicil if other facts showed the requisite 
 animus manendi. 
 
 § 886. Id. Lord Stowell, in The Harmony. — Lord Stowell, 
 in a celebrated passage in the case of The Harmony,^ spoke 
 thus as to the effect of time : " Of the few principles that 
 can be laid down generally, I may venture to hold that time 
 is the grand ingredient in constituting domicil. I think that 
 hardly enough is attributed to its effects. In most cases it 
 is unavoidably conclusive. It is not unfrequently said that 
 if a person comes only for a special purpose that shall not fix 
 a domicil. This is not to be taken in an unqualified latitude, 
 and without some respect had to the time which such a pur- 
 pose may or shall occupy ; for if the purpose be of a nature 
 that may probably, or does actually detain the person for a 
 great length of time, I cannot but think that a general resi- 
 dence might grow upon the special purpose. A special pur- 
 
 8 For. Law, p. 198. 6 System, etc. § 353 (Guthrie's trans. 
 
 * Consuet. Brit. art. 449. p. 98). 
 
 1 2 C. Kot. Ad. 322. 
 484 
 
§ 386.] RESIDENCE AND TIME. [CHAP. XXI. 
 
 pose may lead a mau to a country where it shall detain him 
 the whole of his life. A man comes here to follow a lawsuit ; 
 it may happen, and indeed is often used as a ground of vulgar 
 and unfounded reproach (unfounded as matter of just re- 
 proach, though the fact may be true) on the laws of this coun- 
 try, that it may last as long as himself. Some suits are famous 
 in our judicial history for having even outlived generations of 
 suitors. I cannot but think that against such a long resi- 
 dence the plea of an original special purpose could not be 
 averred ; it must be inferred, in such a case, that other pur- 
 poses forced themselves upon him, and mixed themselves with 
 his original design, and impressed upon him the character of 
 the country where he resided. Suppose a man comes into a 
 belligerent country at or before the beginning of a war ; it is 
 certainly reasonable not to bind him too soon to an acquired 
 character, and to allow him a fair time to disengage himself ; 
 but if he continues to reside during a good part of the war, 
 contributing, by payment of taxes and other means, to the 
 strength of that country, I am of opinion that he could not 
 plead his special purpose with any effect against the rights of 
 hostility. If he could, there would be no sufiScient guard 
 against the fraud and abuses of masked, pretended, original, 
 and sole purposes of a long-continued residence. There is a 
 time which will estop such a plea ; no rule can fix the time 
 a priori, but such a time there must be. 
 
 " In proof of the efficacy of mere time, it is not impertinent 
 to remark, that the same quantity of business, which would 
 not fix a domicil in a certain space of time, would nevertheless 
 have that effect if distributed over a larger space of time. 
 Suppose an American comes to Europe with six contempo- 
 rary cargoes, of which he had the present care and manage- 
 ment, meaning to return to America immediately ; they would 
 form a different case from that of the same American coming 
 to any particular country of Europe with one cargo, and fix- 
 ing himself there to receive five remaining cargoes, one in 
 each year successively. I repeat, that time is the great agent 
 in this matter ; it is to be taken in a coippound ratio of the 
 time and the occupation, with a great preponderance on the 
 article of time. Be the occupation what it may, it cannot hap- 
 
 485 
 
S 388.1 THE LAW OP DOMICTL. [CHAP. XXI. 
 
 pen, but with few exceptions, that mere length of time shall 
 not constitute domicil." 
 
 § 387. Id. Criticism of Lord Stowell's Remarks. — These re- 
 marks have been often quoted, and in some cases adopted and 
 to some extent followed. But it must be borne in mind that 
 they were uttered in a case involving national character in 
 time of war, and that the principles laid down in this class of 
 cases must be used with great caution in cases involving the 
 general doctrine of domicil. The laws of nations guard with 
 great jealousy the right of capture by belligerents, both because 
 prize cases are for the most part decided in the courts of 
 the belligerents themselves, and because by capture commer- 
 cial nations are brought more easily to terms, and thus fight- 
 ing is abridged, and life and property are saved.^ It is well 
 to remember also that Lord Stowell leaned very strongly in 
 favor of the rights of captors, and therefore we may naturally 
 expect to find his views somewhat tinctured by his prejudices.^ 
 His remarks concerning the lawsuit as applied to the general 
 subject of domicil clearly are not sound,^ nor are those con- 
 cerning mercantile venture.* These illustrations seem to 
 have been chosen with singular misfortune. 
 
 § 388. Id. If Time is Conclusive Evidence of Domicil, 'what 
 Length of Time ? — It is pertinently asked by Sir John Mcholl, 
 in Stanley v. Bernes : ^ If time is conclusive, where shaU the 
 
 1 See sv,pra, § 26. stood only to live at a particular place, 
 
 2 Id. and not to found his domicU in that 
 2 Voet, ad Pand. 1. 5, t. 1, no. 98 ; spot, who only resides there, though for 
 
 Corvinus, Jur. Rom. 1. 10, t. 39, pt. 2, several years, for the mere purpose of 
 
 p. 45 6 ; Molinaeus, Opera, t. 2, p. 903, trade or business or to effect any partic- 
 
 ed. 1681, cons. 31, no. 21 ; Menoohius, ular object." The English authorities, 
 
 De Praesump. Praes. 42, no. 2. The too, upon the point are numerous. Many 
 
 last-named says : " Et primnm dicen- of them are noticed in this chapter. It 
 
 dum est habitationem et domicilium inter is sufficient to refer specifically only to 
 
 se dlflfere. Nam domicilium habere quis Jopp v. Wood, 4 De G. J. & S. 616. 
 dicitur in loco qui animo ibi commo- ^ 3 Hagg. Eccl. 373. He says : "For 
 
 randi perpetuo habitat. Is vero qui pro certain purposes a man takes his charac- 
 
 emptione aliqu^ ex causS,, puta studio- ter, prima fade, from the place where 
 
 rum, vel litis vel simili commoratur, he is domiciled, and, ■priina facie, he is 
 
 hahitare dicitur." domiciled where he is resident, and the 
 
 * See authorities cited in last note, force of residence, as evidence of domicil, 
 
 De Witt, in an opinion quoted by Henry is increased by the length of time during 
 
 (For. Law, p. 202) from the HoUandsche which it has continued. All these prin- 
 
 Cousultatien, says: "A man is under- ciples are clear; but time alone is not 
 
 486 
 
§ 389.] RESIDENCE AND TIME. [CHAP. XXI. 
 
 line be drawn ? It is impossible to fix any period, as Lord 
 Stowell himself admits. If a man goes to England for the 
 purpose of conducting a lawsuit which actually requires, for 
 example, but one year, has he gained a domicil ? If he has, 
 clearly it is not because of length of residence. If he has not, 
 would he have gained a domicil if the suit had occupied five, 
 ten, twenty-five, or fifty years ? If five years' time is not suffi- 
 cient, what length of time would be ? The Civilians speak, as 
 we have seen, with no uncertain sound upon this subject, and 
 declare that no length of time is sufficient if there be an 
 intention to return. 
 
 § 389. Id. Dr. Lushington, in Hodgson v. De Beauchesne. — 
 A much more reasonable doctrine is that which has generally 
 been acted upon in the cases, and which has been set forth 
 with great clearness and force by Dr. Lushington in Hodgson 
 V. De Beauchesne,^ and Kinde'rsley, V. C, in Oockrell v. Cock- 
 rell.^ The former said, speaking for the Privy Council : 
 " We concur in opinion that great weight is to be attribu- 
 ted to length of residence, but we think that other matters 
 must be taken into consideration. . . . We think that length 
 of residence, according to its time and circumstances, raises 
 the presumption of intention to acquire domicil. The resi- 
 dence may be such, so long and so continuouSj as to raise a 
 presumption nearly, if not quite, amounting to a presumption 
 juris et de jure ; a presumption not to be rebutted by declara- 
 tions of intention or otherwise than by actual removal. Such 
 was the case of Stanley v. Bernes. The foundation of that 
 decision in this respect was that a Portuguese domicil had 
 been acquired by previous residence and facts, and that mere 
 declarations of intention to return could not be sufficient to 
 
 conclusive ; for where is the line to be domicilium. originis. A temporary resi- 
 
 drawn ? Will the residence of a month, dence for the purposes of health or 
 
 or a year, or five years, or fifty years, be travel or business has not the effect ; 
 
 conclusive ? As a criterion, therefore, it must be a fixed and permanent resi- 
 
 to ascertain domicil, another principle is dence, abandoning finally and forever 
 
 laid down by the authorities quoted as the domicil of origin, yet liable still to 
 
 well as by practice, — it depends upon a subsequent change of intention." 
 the intention, upon the giw animo, — ' 12 Moore P. C. C. 285. For facts, 
 
 that is the true basis and foundation of see ivfra, § 395. 
 domicil; it must be a residence siwe ami- ^ 2 Jur. (n. s.) 727. 
 mo revertendi, in order to change the 
 
 ,487 
 
§ 390.] THE LAW OF DOMICIL. [CHAP. XXL 
 
 prove an intention not to acquire a Portuguese domicil. In 
 short, length of residence per se raises a presumption of inten- 
 tion to abandon a former domicil, but a presumption which 
 may, according to circumstances, be rebutted. It would be a 
 dangerous doctrine to hold that mere residence, apart from the 
 consideration of circumstances, constitutes a change of domi- 
 cil. A question which no one could settle would immediately 
 arise ; namely. What length of residence should produce such 
 consequence? It is evident that time alone cannot be the 
 only criterion. There are many cases in which a very short 
 residence would constitute domicil ; as in the case of an emi- 
 grant who, having wound up all his affairs in the country of 
 his origin, departs with his wife and family to a foreign land 
 and settles there. In a case like that, a residence for a very 
 brief period would work a change of domicil. Take a con- 
 trary case, where a man for business, or pleasure, or mere love 
 of change, is long resident abroad, occasionally returning to 
 the country of his origin, or maintaining all his natural con- 
 nections with that country ; the time of residence would not, 
 to the same extent or in the same degree, be proof of a 
 change of domicil. We concur, therefore, in the doctrine 
 held in many previous cases, that to constitute a change of 
 domicil, tliere must be residence, and also an intention to 
 change." 
 
 § 390. Id. Kindersley, V. C, in Cockrell v. Cockrell. — 
 Kindersley, V. C, in the case above mentioned, says: "Length 
 of time is considered one of the criteria or one of the indicia 
 from which the intention to acquire a new domicil is to be 
 inferred, and it is considered a very material ingredient in 
 the consideration of the question. In the case of The Har- 
 mony, Lord Stowell says : ' Of the few principles that are laid 
 down generally, I may venture to hold that time is the grand 
 ingredient in constituting domicil.' Some foreign jurists have 
 suggested, if they have not actually laid it down, that a period 
 of ten years ought of itself to be a sufficient indication of the 
 intention to acquire a new domicil. But certainly that is not 
 the view of the law that has been adopted by English jurists, 
 nor do I think it is the rule adopted by jurists generally ; and 
 I think it is impossible to lay down any precise period which 
 488 
 
§ 392.] RESIDENCE AND TIME. [CHAP. XXI. 
 
 fer se is to constitute domicil. At the same time, if a man 
 goes to another country and continues to reside there for a 
 considerable period, as in this case for ten years, without say- 
 ing that a residence of ten years is necessary, or that ten 
 years is the period sufficient, still the fact of his residing there 
 for ten years is a very strong indication of his intention to 
 establish his home and his domicil in that place." 
 
 § 391. Id. Poland, J., in Hulett v. Hulett. — But the doc- 
 trine has been nowhere better stated than by Poland, J., in 
 Hulett V. Hulett : ^ " One may remain for a long time in a 
 place without having it become his domicil, and be all the 
 while a mere temporary sojourn. But where one's stay in 
 a place is short, and then he returns to his former home, it 
 affords some presumption or evidence that he went there for 
 a temporary purpose, with no intent to remain, while if his 
 stay or residence is protracted and long continued, it furnishes 
 a corresponding presumption that he designed to remain from 
 the beginning. Other facts and evidence may overcome the 
 presumption in either case, and show that the short stay was 
 of a legally permanent character, and that the longer one was 
 but a mere absence from home, working no legal cliange of 
 residence. But this by no means prevents the permanence 
 and duration of the stay from being admissible and important 
 evidence on the question. Whenever the intent or mental 
 purpose of a person becomes a question to be proved, his 
 acts and conduct are admissible evidence, and often the best 
 and only evidence of it; and his acts and conduct subse- 
 quent to the point of time when such intention is to be shown, 
 are more satisfactory than those which precede or co-exist 
 with it." 
 
 § 392. Id. story, J., in The Ann Green. — In a prize case,^ 
 Story, J., used this language : " As to domicil, it is undoubt- 
 edly true that length of time, connected with other circum- 
 stances, may go very far to constitute a domicil. ' Time,' 
 says Sir William Scott, ' is the grand ingredient in constitut- 
 ing domicil. 1 think that hardly enough is attributed to its 
 effects. In most cases it is unavoidably conclusive.' Upon a 
 
 1 37 Vt. 581. ^ The Ann Green, 1 Gall. 274. 
 
 489 
 
§ 393.] THE LAW OP DOMICIL. [CHAP. XXI. 
 
 residence, therefore, for temporary purposes, there may be 
 engrafted all the eflFects of permanent settlement, if it be con- 
 tinued for a great length of time and be attended with con- 
 duct which demonstrates that new views and new connections 
 have supervened upon the original purposes ; but, on the other 
 hand, mere length of time cannot of itself be decisive, where 
 the purpose is clearly proved to have been temporary, and 
 still continues so, without any enlargement of views ; and 
 even the shortest residence, with a design of permanent set- 
 tlement, stamps the party with the national character." 
 
 It has already been pointed out that the American courts 
 are much more disposed than those of Great Britain to place 
 the doctrine of national character upon the broad basis of 
 domicil. 
 
 § 393. Id. Cases in 'which Long Residence vraa held insuffi- 
 cient to change Domicil. Sieur Garengeau's Case ; White v. 
 Brown. — It may be well now to consider a few of the cases 
 in which time has been either relied upon or rejected as de- 
 termining the question of intention. Allusion has already 
 been made to the case of Sieur Garengeau, reported by Deni- 
 zart,i in which it was decided that residence of sixty-four 
 years was not sufficient to show the requisite intention, in the 
 absence of " any act declarative of his will ; " his presence 
 being in the performance of the duties of an office from which 
 he was removable. 
 
 White V. Brown ^ was the case of one who having his dom- 
 icil of origin in Pennsylvania was, by reason of his adherence 
 to the British king in our Revolutionary struggle, forced to 
 leave his native State in 1776. He went to England, and 
 remained there (with the exception of two or three years 
 spent in visiting the United States and in journeys to the 
 Continent for health and amusement) forty-eight years, — 
 until his death. There were declarations and acts tending 
 both ways ; and Grier, J., left the question of his domicil to 
 the jury, charging them, inter alia : « Did he go to England 
 with the intention of making it his home ? If not, did he 
 at any time while there change his intention, so that the ani- 
 
 1 Ferb. Dom. no. 33. See supra, § 311. 2 j -yy^all. Jr. c. Ct 217. 
 
 490 
 
§ 394.J RESIDENCE AND TIME. [CHAP. XXI. 
 
 mus manendi concurred with the act of inhabitancy so as to 
 constitute a change of domicil? The leading fact that he 
 spent the greater part of his life in England and died there, 
 raises a violent presumption that his intention corresponded 
 with his acts. But as I have before said, in questions of suc- 
 cession, even forty-eight years spent in a foreign country may 
 possibly be accounted for, and the inference drawn from 
 length of time rebutted." The jury having found in favor of 
 his American domicil, upon a motion for a new trial, the 
 court, expressing satisfaction with their finding, refused to 
 set it aside. 
 
 § 394. Id. id. In re Capdevielle ; Jopp v. Wood. — In re 
 Capdevielle ^ was the case of a Frenchman who had resided 
 and engaged in business in England for twenty-nine years. 
 But this was considered by a majority of the Court of Ex- 
 chequer to be overborne by other evidence, principally decla- 
 rations, which showed animus revertendi. 
 
 In Jopp V. Wood,^ a domiciled Scotchman went to India, 
 and, engaging in private business, remained there twenty-five 
 years, with the exception of one year which he spent in Scot- 
 land. He purchased land in India, as a necessary incident 
 to his business, and also a dwelling-house in Calcutta, and 
 described himself in a will and in other instruments as " of 
 Calcutta." But this evidence was not allowed to weigh 
 against his retention and improvement of landed estate in 
 Scotland, and his frequent and continued declarations (pi'inci- 
 pally in his correspondence with persons in Scotland) of his 
 intention to return to that country ; and his domicil of origin 
 was held by Lord Romilly, M. R., and by Knight-Bruce and 
 Turner, L. JJ., on appeal, not to have been changed, — con- 
 siderable weight being given to the fact that his domicil of 
 origin was Scotch. In this case, Turner, L. J., incidentally ex- 
 pressed his opinion that seven years' residence in India would 
 have been too short to have operated to change the domicil 
 in the absence of any other evidence of intention to change it. 
 It has been suggested, however, that this case stands upon 
 peculiar grounds, in view of the well-known custom of Eng- 
 
 I 2 Hurl. & Colt. 985. 2 4 De G. J. & S. 616. 
 
 491 
 
§ 395.] THE LAW OF DOMICIL. [CHAP. XXI. 
 
 lishmen and Scotchmen, who go to India for the express pur- 
 pose of making money, and returning as soon as possible.^ 
 
 § 395. Id. id. Hodgson v. De Beauohesne ; Capdevielle v. 
 Capdevieiie. — Perhaps in no case has the effect of time been 
 more thoroughly discussed than in Hodgson v. De Beauchesne,^ 
 decided by the Privy Council ; and that case has come to be 
 looked upon as a leading one upon the subject. Hodgson, a 
 colonel in the Bast India service, whose domicil of origin was 
 English, having married a French wife and being on furlough, 
 in deference to the wishes of his wife went to Paris, where he 
 took lodgings and continued to reside twenty-three years, — 
 until his death. Upon the death of his wife he purchased a 
 burial-place in France, and had inscribed upon it " Famille 
 Hodgson," and there was some evidence that he expressed an 
 intention to be buried there. There was also other evidence, 
 of, however, no very strong character, tending to show perma- 
 nent residence in France. During his residence in France he 
 was appointed a major-general in her Majesty's service, limited 
 to India, and subsequently promoted to a lieutenant-general- 
 ship. His property, with the exception of his household fur- 
 niture, was all in England, where he kept his accounts and 
 from time to time invested his savings. He made several 
 wills in English form, and was married to his second wife in 
 the chapel of the British ambassador, when he declared his 
 domicil to be English. He never applied to the French Gov- 
 ernment for authorization to become domiciled in France, and 
 expressed great indignation at being called upon to serve in 
 the National Guard. Under these circumstances, it was held 
 that he did not acquire domicil in France. It was admitted 
 that great weight is to be attributed to length of residence, 
 and that length of residence per se raises a presumption of in- 
 tention ; but it was held that the circumstances of this case 
 were sufficient to rebut such presumption, great weight being 
 attached to General Hodgson's military status, which was here 
 looked upon as an evidence of animus non manendi rather than 
 as a bar to the acquisition of domicil in a foreign country, 
 
 ' Miilins, V. C, in Douoet v. Geoghegan, L. R. 9 Ch. D. 441. 
 
 1 12 Moore P. C. C. 285. For remarks of Dr. Lushington, see supra, § 389. 
 
 492 
 
§ 396.] RESIDENCE AND TIME. [CHAP. XXI. 
 
 In Capdevielle v. Capaevielle,^ Malins, V. C, held, in the 
 case of one who was French by origin, that twenty years' resi- 
 dence in England, engaging in trade, purchase of real estate, 
 building of a dwelling-house at an expense of £5,000, and 
 burial of his wife and child there, were insufficient to show 
 intention of permanent residence, it appearing, from his dec- 
 larations mainly, that his views were uncertain and his mind 
 vacillating. 
 
 § 396. Id. id. Gillis v. Gillia ; West's Case ; Munro v. Munro. 
 — In Gillis V. Gillis,^ in the Irish Court of Probate and 
 Matrimonial Causes, Warren, J., while admitting that long 
 residence is calculated to create a strong impression in 
 favor of the acquisition of a new domicil, and sufficient 
 prima facie to show such acquisition, held, in the case of 
 one whose domicil of origin was Irish, that residence abroad 
 for health, which was " consistent with the hope of a 
 change which would enable him to return and reside in 
 Ireland," was not sufficient to work a change of domicil, 
 even though it continued nineteen years in France, and, 
 during the last twelve years, in a purchased house in that 
 country. In this case the person whose domicil was in ques- 
 tion had, before anticipation of suit, executed four wills, in 
 which he described himself as domiciled in Ireland ; and the 
 court held that this, in connection with his own testimony 
 that health was the motive for his residence abroad, rebutted 
 the presumption flowing from long residence in France and 
 the purchase of a house at Pau. 
 
 In West's case,^ Sir C. Cresswell held residence by an Eng- 
 lishman for fourteen years in France, after a previous resi- 
 dence out of England for eleven years, insufficient evidence to 
 show that the testator had renounced his domicil of origin and 
 acquired a French domicil ; there being opposed to ' length 
 of residence other facts and declarations showing animus 
 revertendi. 
 
 In Munro v. Munro,^ Lord Cottenham, while considering 
 residence of seven years by a Scotchman in England as im- 
 
 " 21 L. T. (k. s. ) 660. i! In Goods of West, 6 Jur. (n. s. ) 831 . 
 
 1 Ir. R. 8 Eq. 597. 3 7 CI. & Fin. 842. 
 
 493 
 
§ 397.] THE LAW OF DOMICIL. [CHAP. 2X1. 
 
 portant evidence of intention to reside there permanently, 
 held it to bo overborne by other proofs in the case ; the prin- 
 cipal of which were his ownership of an entailed estate in 
 Scotland, his repeated declarations in his correspondence of 
 his intention to return, his preparations for his return by 
 giving directions for the fitting up of his family residence, ac- 
 companied by the shipment of large quantities of furniture, and 
 his actual return after the time to which the inquiry concern- 
 ing his domicil was directed. Lord Brougham concurred. 
 
 § 397. Id. Cases in which Length of Residence was held 
 sufficient to change Domicil : Stanley v. Bernes ; Anderson 
 V. Laneuville ; Attorney-General v. Kent ; Brunei v. Brunei ; 
 Hood's Estate. — On the other hand, in the following cases 
 the change of domicil was held to have taken place. In 
 Stanley v. Bernes,^ Sir John NichoU looked upon fifty-six 
 years' residence of an Englishman in Portugal, coupled with 
 marriage and naturalization, as strong evidence of his inten- 
 tion to renounce his domicil of origin and acquire a domicil 
 in the latter country. 
 
 In Anderson v. Laneuville,^ the Privy Council, Dr. Lush- 
 ington delivering the opinion, held with respect to one whose 
 domicil of origin was Irish, but who had resided in England 
 for forty-two years, " the domicil of origin was lost, and an 
 English domicil acquired by long residence in England." 
 
 In Attorney-General v. Kent,^ the Court of Exchequer held 
 domiciled in England a Portuguese who had resided in Eng- 
 land thirty-nine years, during the first fifteen of which he was 
 engaged in trade ; and this conclusion was reached in spite of 
 his declaration in his will that he had always intended return- 
 ing to his own country, the declaration being obviously made 
 for the purpose of avoiding legacy duty, liability to which was 
 the question involved in the case. The court, in reaching its 
 conclusion, seems to have relied mainly, if not entirely, upon 
 the fact of long-continued and unexplained residence. 
 
 In Brunei v. Brunei,* the domicil of a Frenchman who had 
 resided thirty-five years in England (during thirty-two years 
 
 1 3 Hagg. Eocl. 373. a 1 Hurl. & Colt. 12. 
 
 29 Moore P. C. C. 325; s. c. * L. R. 12 Eq. Cas. 298. 
 2 Spinks, 41. 
 
 494 
 
§397 a.] RESIDENCE AND TIME. [CHAP. XXI. 
 
 of which he was engaged in business there), had married an 
 English wife, had purchased a family grave in an English 
 cemetery, and had taken various long leases of real estate in 
 London, was held to be English in spite of his declaration 
 that he might return to France, and his refusal to become a 
 naturalized British subject or to give up his citizenship in 
 Paris. The grounds of his decision were not fully stated by 
 Bacon, V. C, but it is apparent that length of residence was 
 one of the main determining facts. 
 
 In Hood's Estate,^ the testator, whose domicil of origin was 
 Pennsylvanian, had resided and engaged in trade in Cuba for 
 upwards of thirty years, occasionally visiting this country for 
 business and pleasure. Being originally a Protestant, he pro- 
 fessed the Roman Catholic religion, and obtained letters of nat- 
 uralization from the Spanish Government. He purchased 
 several sugar plantations in Cuba, and owned other property 
 there ; although, on the other hand, he owned property, real 
 and personal, and was interested in a mercantile house in tliis 
 country, and had expressed a desire to be buried here. Under 
 these circumstances the Supreme Court of Pennsylvania held 
 his domicil to be in Cuba, giving considerable weight to his 
 long residence on that island. 
 
 § 397 a. Id. id. 'Williamson v.Parisien ; Doucet v. Geoghegan ; 
 Haldane v. Eckf ord ; AUardice v. Onslow ; Lyall v. Faton. — In 
 Williamson v. Parisien,^ the plaintiff, Scotch by birth, came 
 to New York during the Revolutionary War, and there, in 
 1780, married an American wife. In 1784 he deserted her 
 and went to the West Indies, where he remained, with the 
 exception of a visit to New York in 1792, until 1813, during 
 which year he again returned and began proceedings in di- 
 vorce. Upon these facts, Kent, Ch., held that a presumption 
 of change of domicil arose, which it was for the plaintiff to 
 rebut, the facts concerning his residence being in his posses- 
 sion; and the bill was dismissed for want of jurisdiction. 
 Plaintiff's New York domicil prior to his departure in 1784 
 was assumed. 
 
 In Doucet v. Geoghegan ,2 the testator, a Frenchman by 
 
 6 21 Pa St. 106. 1 1 Johns. Ch. 389. « L. R. 9 Ch. D. 441. 
 
 495 
 
§ 398.] THE LAW OP DOMICIL. [CHAP. XXI. 
 
 birth and a Catholic, resided and engaged in business in Eng- 
 land twenty-seven years, married successively two English 
 Protestant women, and had his children brought up in the 
 Protestant religion. On the other hand, were his refusal to 
 be naturalized, his frequent returns to Prance, and his decla- 
 ration of his intention to finally return to and reside in that 
 country as soon as he had made a fortune. Malins, V. C, 
 held his domicil to be English, and was affirmed by Jessell, 
 M. R., and James and Brett, L. JJ. ; great stress being laid 
 on the fact of long residence as evidence of Intention to reside 
 permanently. 
 
 In Haldane v. Eckford,^ residence " for a great number of 
 years" (twenty-five) was, inter alia, relied upon by James, 
 V. C, for holding one whose domicil of origin was Scotch, 
 domiciled in Jersey ; and in AUardice v. Onslow,* Kindersley, 
 V. C, held one whose domicil of origin was also Scotch, dom- 
 iciled in India, upon the fact of twenty years' residence in the 
 latter country as a coffee-planter, and his description of him- 
 self in his will as so resident. In Lyall v. Paton,^ Kindersley, 
 Y. C, again held to the same effect under almost precisely 
 similar circumstances. 
 
 § 398. Id. id. Ennis v. Smith ; King v. Fozr^ell ; Bremer v. 
 Freeman. — Ennis V. Smith 1 has already been referred to. It 
 was there held by the Supreme Court of the United States that 
 the domicil of Kosciusko was, at the time of his death in 1817, 
 French. The facts of the life of the Polish patriot do not 
 appear to have been very fully before the court ; but of the 
 proofs which were before it, particular weight appears to have 
 been attached to the fact of residence of seventeen or eighteen 
 years in Prance, which the court considered sufficient to rebut 
 the presumption of continuance of domicil of origin, and to 
 create the contrary presumption of animus manendi, to the 
 extent, at least, of casting the burden of proof upon the person 
 alleging that the residence was for a temporary purpose. 
 
 Similar to the doctrine of Ennis v. Smith was that of Jes- 
 sell, M. R., in King v. Foxwell,'' in which the testator, an 
 
 « L. R. 8 Eq. Cas. 681. l 14 How. 400. 
 
 * 10 Jur. (n. s.) 352. ' L. R. 3 Ch. D. 518. 
 
 6 25 L. J. Ch. 746. 
 496 
 
8 398.] RESIDENCE AND TIME. [CHAP. XXI. 
 
 Englishman, emigrated to the State of New York and there 
 resided fifteen years, engaging in business as a shoemaker, 
 and becoming a naturalized citizen of the United States. He 
 was held to have acquired a domicil in New York, the Master 
 of the Rolls saying : " You must therefore show permanent 
 residence in a new country. Neither of these is a simple fact ; 
 for I take it that all these questions of status involve a good 
 deal more than can be seen by the eye. Eesidence is not 
 eating, drinking, and sleeping at a particular house ; all these 
 things may be done for years, while a person is travelling. 
 On the other hand, a person may have a residence, and yet not 
 visit it for a number of years ; that may be his only residence ; 
 he may have no other home. It is, therefore, difficult to say 
 what residence is ; but that is what the. law requires. Again, 
 what is the meaning of permanent residence ? That is a 
 question which cannot be decided by mere length of time ; the 
 answer to it must involve the consideration of the intention 
 of the person. That being the state of the law, did this shoe- 
 maker intend to reside permanently in the United States ? 
 There can be no question as to residence ; he had a shop and 
 house in Syracuse for fifteen years, and during those years 
 he had no other place of abode. Then did he reside there 
 permanently, or was it the intention on his part to reside for 
 a limited period only ? If you show that a man resides in 
 one place for a length of time, the inference is that he in- 
 tends to reside there permanently, unless there is something 
 to rebut it; and here, therefore, the testator having lived 
 in the United States for fifteen years, must be taken to have 
 resided there permanently, unless some evidence is produced 
 to the contrary." 
 
 In Bremer v. Freeman ,3 the testatrix, an English woman by 
 birth, resided in Paris for fifteen years without any business 
 or occupation and without quitting it, taking apartments on 
 leases and furnishing them herself, and making occasional 
 declarations that " she would never return to England, and 
 that she wished to be buried near her sister in the cemetery 
 of P^re La Chaise." Her domicil was held by the Privy 
 Council to be French, notwithstanding the fact that she had 
 8 10 Moore P. C. C. 306. 
 
 32 497 
 
§ 399.] THE LAW OP DOMICIL. [CHAP. XXI. 
 
 never obtained authorization from the French Government to 
 fix her domicil in Prance. 
 
 § 399. Id. id. Cockrell v. Cockrell ; Attorney-General v. 
 Fitzgerald ; Weston v. 'Weston ; Shelton v. Tiffin ; Easterly v. 
 Goodwin ; Hawley's Case. — Cockrell V. Oockrell ^ was the 
 case of an English officer in the navy upon half pay, who 
 went to India and engaged in a very lucrative business. He 
 married there, had children born, and continued there in 
 business for ten years until his death, receiving half pay and 
 applying from time to time for fresh leaves of absence. 
 Kindersley, V. C, held him to be domiciled in India, laying 
 great stress upon the fact of his long residence, remarking : 
 " The fact of his residing there for ten years is a very strong 
 indication of his intention to establish his home and his dom- 
 icil in that place." In Attorney-General v. Fitzgerald,^ the 
 same Yice-Chancellor considered residence for nine years in 
 a leased house in England sufficient evidence of a change of 
 domicil, by one whose domicil of origin was Irish, but who 
 had resided for ten years in India. The facts of this case 
 are, however, but meagrely reported. 
 
 In Weston v. Weston,^ W., whose domicil of origin does not 
 appear, but who had resided sixteen years in New York, and 
 who there owned land, the ownership of which he retained 
 up to the time of his death, departed from that State, leaving 
 behind him his wife, and went to Ohio, where he resided ten 
 years and died. His wife continued to reside in New York up 
 to the time of his death. Under these circumstances the Su- 
 preme Court of New York held him domiciled, at the time of 
 his death, in Ohio ; Spencer, J., remarking : " His long resi- 
 dence in Ohio, separated from his wife, and the absence of all 
 proof that he intended to return to this State, are decisive cir- 
 cumstances to show that there was a change of domicil, and 
 he must be regarded as an inhabitant of the State of Ohio." 
 In Slielton v. Tiffin,* the Supreme Court of the United States 
 considered residence of two years, coupled with the purchase 
 and cultivation of a plantation, as raising a strong presump- 
 tion of change of domicil from one State to another. 
 
 1 2 Jur. (N. s.) 727. 8 14 Johns, 428. 
 
 3 Drew. 610. 4 6 How. 163. 
 
 498 
 
§ 400.1 RESIDENCE AND TIME. [CHAP. XXI. 
 
 In Easterly v. Goodwin,^ where E. went to California in 
 1850 on business, and resided there at intervals until 1858, 
 the Supreme Court of Connecticut, speaking through Park, J., 
 said : " No doubt the length of time the plaintiff remained in 
 California, and his exercise of the elective franchise there, 
 were important facts upon the question of citizenship, and 
 unless controlled by evidence of a superior character, would 
 have been sufficient to warrant the court in finding that he 
 was a citizen of that State." 
 
 In Hawley's case,^ a person of Irish birth came to this 
 country when he was thirteen years of age, and remained here 
 until he was twenty-three, when he returned to Ireland to see 
 his father, who was ill, and remained there, following his 
 calling as a mechanic, for seven years, when he returned to 
 this country and attempted to be naturalized. Daly, First 
 Judge, who in this and other cases put the " residence " re- 
 quired by the naturalization laws upon the ground of domicil, 
 held that he had lost his " residence " in this country, although 
 at the time of leaving he had expressed his intention to re- 
 turn, and had previous to leaving made a formal declaration 
 of intention to become a citizen. 
 
 § 400. Id. Result of the Decisions. — And SO cases might be 
 multiplied indefinitely ; but enough have been cited to show 
 that the real ratio of the decisions is that long-continued resi- 
 dence, although not conclusive, creates a strong presumption 
 of intention to reside permanently, and shifts the burden of 
 proof upon him who alleges otherwise; which burden may, 
 however, be discharged by proof of superior facts showing 
 animus revertendi. 
 
 6 35 Conn. 279. « 1 Daly, 631. 
 
 499 
 
§ 401.] THE LAW OP DOMICIL. [CHAP. XXII. 
 
 CHAPTER XXII. 
 
 CEITEEIA OP DOMICIL (continued'), — EESIDENCE OP WIPE AND 
 
 FAMILY. 
 
 § 401. A Man is presumed to be domiciled where his 'Wife 
 and Family reside. — In the Case of a married man one of the 
 most usual and cogent indicia of his domicil is the dwelling- 
 place of his wife and family. A late English judge,^ in 
 attempting to translate and apply to the conditions of our own 
 times the definition of the Code, — "ubi quis larem ac for- 
 tunarum suarum constituit," — finds in the wife the modern 
 equivalent of the Roman " lares." Certainly, apart from any 
 rule or presumption of law, nothing so serves to fix the location 
 of the home of a married man as the habitual presence of those 
 to whom he is united by the closest ties of blood and affection. 
 The wife and family are usually placed at home, and it is to 
 that point that the husband and father when absent usually 
 intends to return. From such place " he is not about to de- 
 part unless something calls him away ; when he has left it, he 
 appears to have wandered abroad, and when he has returned 
 to it he has ceased wandering." The law supposes, unless 
 the contrary be shown, that husband and wife live together.^ 
 Even though separated — for how long soever a time — the 
 presumption is that the husband and father does not intend 
 to abandon his wife and family, but intends to return to them 
 after the temporary causes which require his absence are at 
 an end. And this presumption is so strong that it requires 
 the most cogent proof to remove it.^ It is therefore held in 
 
 1 Wood, V. C. (afterwards Lord in this State, and we think the contrary 
 
 Hatherley), In Forbes v. Forbes, Kay, may be reasonably presumed. The 
 
 341. principal ground of this presumption is 
 
 ^ Prieto?). Duncan, 22 111. 26. the important fact that he did not re-- 
 
 5 Jennison v. Hapgood, 10 Pick. 77. move his family. The presumption is, 
 
 In that case "Wilde, J., said : " There is that he did not intend to abandon them; 
 
 certainly no direct evidence of the tes- and this presumption is so strong that it 
 
 tator's intention to abandon his domicil requires most cogent proof to remove it." 
 
 500 
 
§ 402.] 
 
 RESIDENCE OP WIFE AND FAMILY. [CHAP. XXII. 
 
 numerous cases that a married man is generally to be deemed 
 domiciled at the place where his wife and family dwell.* 
 
 § 402. Id. — The residence of the wife is at least prima 
 facie evidence of the domicil of the husband,^ and in the 
 . absence of any proof to the contrary is to be deemed con- 
 clusive.2 Of course, it must be understood that this residence 
 must itself have the character of permanency ; ^ for the mere 
 transient presence of a wife and family in a place proves 
 nothing. As was recently said in a Kansas case,* " The resi- 
 dence of a man who has a family which he maintains and 
 which has an established home is prima facie with that family. 
 Wherever he locates that family in anything like a fixed 
 and permanent residence, it is presumptively his chosen place 
 
 190 ; Colbum v. Holland, 14 Etch. Eq. 
 176 ; Cunningham v. Maund, '2 Ga. 
 171 ; Gilmer v. Gilmer, 32 id. 685 ; 
 Daniel «. Sullivan, 46 id. 277 ; Smith 
 V. Croom, 7 Fla. 81 ; Kiggs v. Andrews, 
 8 Ala. 628 ; Yonkey v. State, 27 Ind. 
 236 ; Prieto v. Dunean, 22 111. 26 ; 
 Penley v. Waterhouse, 1 Iowa, 498 ; 
 State V. Groome, 10 id. 308 ; Nugent v. 
 Bates, 51 id. 77 ; Keith v. Stetter, 25 
 Kans. 100 ; Williams v. Henderson, 18 
 La. E. 557; Hill v. Spangenburg, 4 La. 
 An. 553 ; Brown v. Boulden, 18 Tex. 
 431 ; Blueher v. Milsted, 31 id. 621. 
 Pothier, Intr. aux Cout. d'Orleans, no. 
 20; Masoardus, De Probat. concl. 635, 
 no. 2; Voet, ad Pand. L 5, t. 1, no. 97 ; 
 Burgundus, Ad Consuet. Fland. Tract. 2, 
 no. 34; Henry, For. Law, pp. 192, 198 ; 
 Story, Confl. of Law, § 46; Wharton, 
 Confl. of L. § 67. See also Tabbs v. Ben- 
 delack, 4 Esp. 108, and Whithorne v. 
 Thomas, 7 M. & G. 1. 
 
 1 Catlin V. Gladding, supra ; B.rewer 
 V. Liunseus, supra; Topsham v. Lewis- 
 ton, supra ; and generally the authori- 
 ties cited supra. 
 
 " Brewer v. Linnseus, supra. 
 
 ' Forbes v. Forbes, supra ; Grant v. 
 Dalliber, supra ; Daniel v. Sullivan 
 supra; Nugent v. Bates, supra; Keith 
 V. Stetter, supra; Pearce v. State, 
 1 Sneed(Tenn.), 63. 
 
 ^ Keith V. Stetter, supra. 
 
 * Ommanney v. Bingham, Eobertson, 
 Pers. Sue. Appendix, p. 468 ; Piatt v. 
 Attorney-General, L. R. 3 App. Cas. 
 336 ; Hoskins v. Matthews, 8 De G. 
 il. & G. 13 ; Forbes v. Forbes, Kay, 
 341 ; Aitchison v. Dixon, L. R. 10 Eq. 
 Cas. 589 ; Buruham v. Rangeley, 1 
 Wood. & M. 7 ; Catlin n. Gladding, 
 4 Mas. 308; Hylton v. Brown, 1 Wash. 
 C. Ct. 298 ; Cooper v. Galbraith, 3 id. 
 646 ; United States v. Thorpe, 2 Bond, 
 340 ; Knox v. Waldoborough, 3 Greenl. 
 455 ; Greene ». Windham, 13 Me. 225 ; 
 Brewer v. Linnaeus, 36 id. 428 ; Tops- 
 ham V. Lewiston, 74 id. 236 ; Shattuck 
 V. Maynard, 3 N. H. 123 ; Kumney v. 
 Camptown, 10 id. 567 ; Anderson u. 
 Anderson, 42 Vt. 350 ; Williams v. 
 Whiting, 11 Mass. 424 ; Jennison v. 
 Hapgood, 10 Pick. 77 ; Greene v. 
 Greene, 11 id. 410 ; Bangs v. Brewster, 
 111 Mass. 382 ; Grant v. Dalliber, 11 
 Conn. 234 ; Fiske v. Chicago, &c. B. E. 
 53 Barb. 472 ; Ames v. Duryea, 6 Lans. 
 165 ; Lee v. Stanley, 9 How. Pr. 272 ; 
 Chaine v. Wilson, 1 Bosw. 673 ; Sher- 
 wood V. Judd, 3 Bradf. 267 ; Roberti 
 and Wife v. Methodist Book Concern, 
 1 Daly, 3; Matter of Scott, id. 534; 
 Matter of Bye, 2 id. 525; Cadwallader 
 V. Howell & Moore, 3 Harr. (N. J.) 
 138 ; Brundred u. Del Hoyo, Spencer 
 (N. J.) 328 ; Dauphin County w. Banks, 
 1 Pears. 40 ; Burch v. Taylor, 1 Phila. 
 224; Plnmer v. Brandon, 5 Ired. Eq. 
 
 501 
 
I 403.] THE LAW OP DOMICIL. [CHAP. XXII. 
 
 of residence. Wherever he may go for business or pleasure, 
 he resides at home, and home is where the family dwell." 
 
 When a man's wife and family reside in one place and he 
 does business in another, returning to them at intervals, it is 
 clear that he is domiciled where they dwell, and not where he 
 does business.^ But even when he has been absent from them 
 for a long time, the presumption that he intends to return to 
 them and dwell with them applies with great force.^ 
 
 § 403. Id. Bangs v. Brewster and Anderson v. Anderson. — 
 The effect of the presence of the wife at a particular place in 
 fixing the domicil of her husband there, has been in several 
 cases of municipal domicil carried to great lengths, — to the 
 extent, indeed, not only of holding her presence to be strong 
 evidence that he is domiciled there, but of dispensing with the 
 factum usually demanded for a change of his domicil, that is, 
 the transfer of the bodily presence of the person himself. In 
 Bangs V. Brewster,^ the husband, being a mariner, left the 
 town of A., in which he was domiciled, and went to sea with 
 his wife, intending upon his return to make his home in the 
 town of B. In pursuance of this intent, before his voyage 
 was completed, he sent his wife to the town of B., where she 
 remained, and whither he followed her six months afterwards. 
 Upon these facts the Supreme Court of Massachusetts held 
 that the husband was domiciled in B. from the time of the ar- 
 rival of his wife there; Morton, J., saying: "By sending his 
 wife to Orleans with the intent to make it his home, he thereby 
 changed his domicil. The fact of removal and the intent 
 concurred. Although he was not personally present, he estab- 
 lished his home there from the time of his wife's arrival." In 
 Anderson v. Anderson,^ the facts were, that a non compos, 
 
 8 Cooper y. Galbraith, sifpra; United key i). State, SMpj-a ; "Williams r. Hen- 
 States u. Thorpe, s^ipra ; Shattuck v. derson, sapj-a ; Hill ». Sijangenburg, s«- 
 Maynard, supra ; Williams v. Whiting, pra ; Bluoher v. Milsted, supra ; Story, 
 supra ; Greene v. Greene, supra ; Fiske Confl. of L. § 46 ; Wharton, Confl. of 
 V. Chicago, &c. R. R,, supra; Chaine v. L. § 67. 
 
 Wilson, supra ; Roberti and Wife v. ^ See, e. g., Brundred v. Del Hoyo, 
 
 Methodist Book Concern, sttpra; Bruu- supra. 
 
 dred v. Del Hoyo, supra; Dauphin Coun- i 111 Mass. 382. 
 
 ty V. Banks, srapra; Colburn ». Hoi- " 42 Vt. 350. In this case the guar- 
 
 land, sujn-a ; Cunningham u Mannd, dian was also the father-in-law of the 
 
 supra ; Daniel v. Sullivan, supra; You- ncm compos, and his daughter moved to 
 
 502 
 
. § 404.J RESIDENCE OF WIPE AND FAMILY. [CHAP. XXII. 
 
 whose domicil prior to losing his mind was in W., was placed 
 by his guardian in an asylum in B. Subsequently his wife, 
 with the assent of the guardian, removed to M., continuing to 
 reside there until the death of her husband in the asylum. 
 Upon these facts the Supreme Court of Vermont held that the 
 non compos was at the time of his death domiciled in M. 
 
 While the circumstances of these cases are somewhat anom- 
 alous, the doctrine held appears to be in conflict with the 
 general tenor of the authorities, may well be doubted, and 
 probably will never be extended to cases of national and quasi- 
 national domicil.^ 
 
 § 404. But a Wife cannot control the Domicil of her Hus- 
 band. — But the presumption is one of fact, and not of law.^ 
 " The wife's domicil may be governed by that of the husband, 
 but the reverse is not true." ^ The wife cannot be allowed to 
 control the domicil of her husband. Thus in a New York 
 case,^ B., a native of Holland, came to America and remained 
 nine years, when he returned to Holland and married there, 
 and there his wife and two children ever afterwards resided. 
 Some time after his marriage he again came to this country, 
 and engaged in the American merchant marine for fifteen 
 years, during the last six of which he sailed exclusively in 
 vessels belonging to the port of New York. He visited his 
 wife and family twice, furnished money for their support, 
 and constantly endeavored to induce his wife to. remove to 
 America, which she declined to do. Bight years prior to the 
 
 his home in Montpelier in order to avoid Upon arriving there his wife leased a 
 
 paying rent. The fact that the domicil house in which she and her children 
 
 of the guardian was in Montpelier does thereafter lived. The plaintiff himself 
 
 not appear to have had any weight with did not come to Brooklyn until January, 
 
 the court in deciding that of the Jiora com- 1884. It was held that he was not a 
 
 pos to be there. The sole ground appears resident of New York prior to Nov. 30, 
 
 to have been the residence of his wife. 1883, that being the date inquired 
 
 * Indeed, the contrary has been held about ; the question being one of limi- 
 
 in several cases of jMosi-national domi- tation. Casey's case was almost iden- 
 
 cil; namely, Penfield v. Chesapeake, &c. tical. See supra, § 126. 
 
 R. B. Co., 29 Fed. R. 494 ; Casey's l Pearce v. State, 1 Sneed (Tenn. ), 
 
 Case, 1 Ashm. 126. In the former case 63 ; and see authorities cited infra, 
 
 the plaintiff, a resident of St. Louis, § 405, note 1. 
 
 Mo., formed the intention of changing ^ McDaniel v. King. 5 Cush. 469. 
 
 his residence to Brooklyn, N.Y., in pur- ^ Matter of Bye, 2 Daly, 62.5. For 
 
 suance of which, in August, 1883, he fnller statement of facts and opinion of 
 
 sent his wife and children to Brooklyn, the court, see suprn, § 305, note 3. 
 
 503 
 
§ 405.] THE LAW OP DOMICIL. [CHAP. XXII. 
 
 question being raised, he declared in legal form his intention 
 to become a citizen of the United States. Upon application 
 for naturalization he was held to be domiciled in New York. 
 Daly, J., in a learned opinion, in which the subject of domicil 
 is considered at some length, said : " Another circumstance, 
 and generally a controlling one, is that he is a married man 
 whose residence is naturally at the place and in the countr}- 
 where his wife and family dwell. But this is not conclusive in 
 all cases, for it is not in the power of a man's wife or family 
 to control his free right to fix his residence and place of per- 
 manent abode in any part of the world to which his interests or 
 his inclination may lead him. It is the wife's duty to follow the 
 fortunes of the husband; to go 'whither he goeth,' and abide 
 in that place where it is most convenient for him to enjoy her 
 society, and where he is able and willing to make provision for 
 her support and that of her children." Porterfield v. Augusta* 
 serves as a further illustration. In that case the husband, a 
 shipmaster, was domiciled in Brooklyn, New York. During his 
 absence at sea his wife went to Augusta, Maine, taking with her 
 her children, and there remained until summoned to meet him 
 in Brooklyn on his return from his voyage. It was held that 
 the husband did not thereby become domiciled in Augusta. 
 
 § 405. The Presumption that a Man is domiciled -where his 
 Wife and Family reside is not conclusive. — However cogent 
 may be the fact of the wife dwelling at a place as proof that 
 he is domiciled there, it is by no means conclusive. The 
 domicil of a married man is not necessarily with his wife and 
 family .1 " The effect of the residence of the wife being after 
 
 < 67 Me. 556. son v. Parisien, 1 Johns. Ch. 389 ; 
 
 1 Warrenderu Wawender, 2 CI. &F. Matter of Bye, 2 Daly, 525 ; McPher. 
 488 ; Forbes v. Forbes, Kay, 341 ; son v. Housel, 13 N. J. Eq. 35 ; Casey's 
 Douglas V. Douglas, L. E. 12 Eq. C. Case, 1 Ashm. 126 ; Reed v. Ketch, 
 617 ; Bumham v. Rangeley, 1 Wood. & 1 Phila. 105 ; Bradley v. Lowery, 
 M. 7 ; Blair v. Western Female Semi- Speer's Eq. 1 ; Gilmer ». Gilmer, 32 
 nary, 1 Bond, 578 ; Penfield v. Cheaa- Ga. 685 ; Smith v. Croom, 7 Fla. 81 ; 
 peake, &c. R. R. Co., 29 Fed. R. 494 ; Prieto v. Duncan, 22 111. 26 ; Wells v. 
 Richmond v. Vassalborough, 5 Greenl. People, 44 id. 40 ; Soholes v. Murray 
 396 ; Greene v. Windham, 13 Me. .225 ; Iron Works Co., 44 Iowa, 190 ; Nugent 
 Parsons •.,. Bangor, 61 id. 457 ; Cam- v. Bates, 51 id. 77 ; Exchange Bank v. 
 bridge v. Charlestown, 13 Mass. 501; Cooper, 40 Mo. 169; Pearce y.' State, 
 McDaniel v. King, 5 Cash. 469 ; Wes- 1 Sneed (Tenn.), 63; Hairston v. Hair- 
 ton V. Weston, 14 Johns. 428 ; William- ston, 27 Miss. 704 ; Sanderson v. Eal- 
 504 
 
§ 406.] 
 
 RESIDENCE OF WIPE AND FAMILY. [CHAP. XXII. 
 
 all but evidence of intention may be rebutted by evidence of a 
 stronger character." ^ If it clearly appears that the husband 
 has deserted his wife or the wife her husband, or if they 
 have separated and are living apart under a mutual under- 
 standing or agreement, of course the residence of the wife is 
 not determinative of the domicil of the husband. So, too, 
 where a man goes to a new place intending to settle there and 
 to prepare a home for his family, leaving the latter behind 
 at the old place of abode (to follow him at such time as he 
 shall be prepared to receive them), it has been held in nu- 
 merous cases that he may gain a domicil in the new place 
 even before their arrival,* ^ in many cases, moreover, although 
 it appears that he intends returning to bring them to the new 
 place of abode. 
 
 § 406. Residence of Children, Grandchildren, and other Rel- 
 atives. — In Stevenson v. Masson,^ the testator, whose domicil 
 of origin was Canadian, retired from business there, sold his 
 house and burial-place, and went to Prance for the purpose of 
 
 ston, 20 La. An. 312 ; Eussell v. Ean- 
 dolph, 11 Tex. 460 ; Lacey v. Clements, 
 36 id. 661 ; Story, Confl. of L. § 46 ; 
 Dicey, Dom. p. 125. In Pearce v. The 
 State, Totten, J., thus states the doc- 
 trine : "It is not true that the resi- 
 dence of a married man's family is 
 necessarily to be deemed his domicil. 
 For besides the supposed case of a separa- 
 tion there may be a temporary residence 
 only for the family or for transient pur- 
 poses at a place which is not his perma- 
 nent residence and home. It is true 
 that the residence of a manied man's 
 family is in general to be deemed his 
 domicil, because they usually reside at 
 his permanent home ; the place to which 
 whenever he is absent for business or 
 pleasure, he has the intention to return. 
 The residence of the family is a fact 
 from which the domicil may be pre- 
 sumed ; and this is a presumption of 
 fact and not of law, as was erroneously 
 stated by the judge. The presumption 
 may be removed by proof to the effect 
 that the true domicil is at a different 
 place from that of the family residence." 
 2 Wood, V. C, in Forbes k. Forbes, 
 
 Kay, 341. He said :" The effect of the 
 residence of the wife being after all but 
 evidence of intention may be rebutted 
 by evidence of a stronger character. If, 
 as in Sir George Warrender's case, the 
 husband were living apart from the 
 wife, — if, perhaps, some particular state 
 of health required the wife to reside in a 
 warmer climate not agreeable to her 
 husband, or the like, so that he was 
 obliged to visit his wife away from 
 home, — he might still be domiciled at 
 a residence of his own apart from her." 
 
 ^ Burnham ■». Rangeley, supra; 
 Blair v. Western Female Seminary, su- 
 pra; Parsons v. Bangor, 61 Me. 457; 
 Cambridge v. Charlestown,13 Mass. 501; 
 Eeed v. Ketch, 1 Phila. 105 ; Wells v. 
 People, 44 111. 40; Swaneyi). Hutchins, 
 13 Neb. 266; Johnson v. Turner, 29 Ark. 
 280 ; Republic v. Young, Dallam, 464 ; 
 Eussell V. Randolph, 11 Tex. 460 ; Lacey 
 V, Clements, 36 id. 661. See, contra, 
 State V. Hallett, 8 Ala. 159; Talmadge's 
 Adm'r v. Talmadge, 66 id. 199, and 
 Brown v. Boulden, 18 Tex. 431; and see 
 supra, § 177, note 2. 
 
 1 L. R. 17 Eq. Cas. 78. 
 605 
 
fi 407.] THE LAW OF DOMICIL. [CHAP. XXII. 
 
 educating his children. Subsequently, his wife having died, he 
 went to England, and purchased a leasehold house in London, 
 in which he continued to reside until his death. His daughter 
 married an Englishman and settled in London. Testator ap- 
 prenticed his son to a London merchant, and agreed to pur- 
 chase for him a share in said merchant's business. While 
 residing in Prance and in England he made several visits to 
 Canada, and there made a will in Canadian form, in which he 
 described himself as of Montreal, and even, during one of his 
 visits there, declared his intention to return permanently to 
 Canada. Vice-Chancellor Bacon held his domicil to be Eng- 
 lish, and in so doing relied strongly upon the settlement of 
 testator's children in England. He said : " He takes a house 
 there ; he settles his children there. The marriage of his 
 daughter and the apprenticeship of his son, in the first in- 
 stance, and the subsequent buying of a partnership for him, 
 are as serious events in the course of a man's life as can well 
 be considered with reference to his domicil." 
 
 In Haldane v. Eckford,^ James, V. C.,laid great stress upon 
 the presence of the testator's grandchildren, to whom he was 
 greatly attached, with him in Jersey, where he had resided 
 for a number of years, and where he desired one of them to 
 reside permanently, as evidence of the testator's own inten- 
 tion of pei'manent residence there. 
 
 In Hodgson v. De Beauchesne,^ Dr. Lushington, speaking 
 for the Privy Council, in the case of an English officer resid- 
 ing with his wife and child in Prance, considered the strong 
 attachment of the deceased to his relatives and friends in 
 England, evidenced by his frequent visits to them, as a proof 
 of his intention to retain his English domicil of origin. 
 
 § 407. National Character and Religion of Wife, Form of Mar- 
 riage Ceremony, etc. — The national character of the wife, the 
 performance of the marriage ceremony in accordance with 
 the rites of her religion and the laws of her country, together 
 with residence of husband and wife in that country, have been 
 relied upon as some evidence of the domicil of the husband 
 in some cases. In Drevon v. Drevon,' a Frenchman went 
 
 2 L. R. 8 Eq. Gas. 631. i 34 L. J. Ch. 129. 
 
 " 12 Moore P. 0. C. 285. 
 
 506 
 
§ 408.] RESIDENCE OF WIFE AND FAMILY. [CHAP. XXII. 
 
 to England and there married an English woman according to 
 English rites. Their children, although educated in France, 
 were baptized according to English forms. Kindersley, V. C, 
 held his domicil to be English, mainly upon other evidence ; 
 remarking, however, upon this subject : " I do not mean to 
 say that that at all constitutes an Englishman, but it is a cir- 
 cumstance to be taken in connection with other circumstances. 
 Now, of course it would be said, and very fairly said, that if an 
 Englishwoman marries a Frenchman, or if an Englishman mar- 
 ries a French woman, that it does not change his domicil ; nor 
 does any one fact change his domicil per se, but it is one of a 
 number of facts which must not be left out of consideration 
 altogether." 
 
 In Doucet v. Geoghegan,^ the facts of which have already 
 been cited at large, a French Catliolic married in England 
 successively two Protestant women, and allowed his children 
 to be brought up in the Protestant religion ; and in holding 
 his domicil to be English, James, L. J., said : " I wish to add 
 that I am disposed to think that when the testator entered 
 the English Church and declared that he knew of no impedi- 
 ment to his lawful marriage, he must be taken to have made 
 a solemn declaration that he had an English domicil." In 
 Stanley v. Bernes,^ Sir John NichoU seems to have attached 
 some importance to the fact that the testator, an Irishman by 
 birth, married in Portugal (where he resided before and for 
 many years after his marriage) a Portuguese lady, according 
 to the Roman Catholic forms, and in order to do so, embraced 
 the Roman Catholic religion. 
 
 § 408. Relation of Place of Marriage and Residence of Wife 
 to quasi-National Domicil. — The principle that marriage in a 
 country to a woman domiciled there is evidence as to the 
 domicil of the husband, applies to some extent also to cases 
 of g'wasz-national domicil. Thus, in Cockrell v. Cockrell,^ 
 where an officer of the Royal Navy, on half pay, went to India 
 and engaged in mercantile business, married there, had chil- 
 dren, and continued in business there for ten years, until his 
 
 2 L. R. 9 Ch. D. 441. ^ 2 Jur. (n. s. ) 727. See also Bur- 
 
 ' 3 Hao'g. Eccl. 373. gundus, Ad Consuet. Fland. Tract. 2, 
 
 no. 34. 
 
 507 
 
§ 409.] THE LAW OP DOMICIL. [CHAP. XXII. 
 
 death, Kinderslej, V. C, in holding his domicil to be Anglo- 
 Indian, considered his marriage in India, and his continued 
 residence there, strong evidence that he was domiciled there. 
 
 But the weiglit to be given to this species of evidence de- 
 pends upon the other facts in the case, and may, according to 
 circumstances, be of much or little importance.^ 
 
 § 409. Betrothal as Evidence of Domioil. — We have already 
 seen that betrothal does not, ipso facto, change the domicil of 
 the woman betrothed. But if a woman domiciled in one 
 country comes into another, and after residing there for some 
 time becomes betrothed to one whose domicil is in the latter 
 country, shall not this fact have weight in determining her 
 animus manendi or animus revertendi? This question was 
 somewhat considered in the Scotch case of Arnott v. Groom.^ 
 The facts were that a lady, whose domicil of origin was Anglo- 
 Indian, and who, after the death of her father in India, was 
 brought at a tender age by her mother to Scotland, and was 
 kept there till the expiration of the age of pupillarity (after 
 which time, according to the Scotch law, she might change 
 her domicil at pleasure), subsequently went with her mother 
 
 2 See (c. g. ) Munro v. Munro, 7 CI. the ohureli of it, and an oath must be 
 
 &Fin. 842; Aikman ». Aikman, SMaoq. made that such is her residence and 
 
 H. L. Cas. 854 ; Hodgson v. De Beau- domicil ; otherwise she requires a special 
 
 chesne, 12 Moore P. C. C. 285; Douglas license to be married. Of this the Lord 
 
 V. Douglas, L. E. 12 Eq. Cas. 617; Wal- Ordinaiy can inform the parties, for he 
 
 lace's Case, Eobertson, Pers. Sue. p. 201. knows it personally ; he married a lady 
 
 In the latter case the Lord Ordinary born under English law, and who had 
 
 (Cringletie) said: " The Lord Ordinary resided all her life in and near London ; 
 
 regrets that the parties have thought it he had to make oath that she had lived 
 
 necessary to detail the circumstances in the parish of Acton for a certain 
 
 of Capt. Wallace's marriage with Miss time, and he entered into a contract of 
 
 Oliver in England, and the terms of his marriage in the English form ; but that 
 
 contract of marriage with that lady, as, had no more effect in fixing his domicil 
 
 to the Lord Ordinaiy, they appear to than the winds of heaven. Captain 
 
 have not the least bearing on the cause. Wallace, having been a Scotchman in 
 
 A man, by marrying in England an Eng- the array, did not acquire any domicil 
 
 lish woman, does not thereby become by raaiTying there, but returned to Edin- 
 
 domiciled there; nor is it necessary that burgh, where he sold out of the ai-my, 
 
 he should reside a day there for that lived here for some time, and died here! 
 
 purpose ; far less does he make his chil- There can therefore be no doubt that he 
 
 dren domiciled there by the mere act of died here domiciled as a Scotchman." 
 
 marrying in England. The lady must i 9 D. (Sc. Sess. Cas. 2d ser. 1846) 
 
 reside i» a certain parish for a specified 142. See supra, § 211. 
 time, to enable her to be married in 
 
 508 
 
§ 409.] RESIDENCE OP WIFE AND FAMILY. [CHAP. XXII. 
 
 to the Continent, where she resided for a year, and afterwards 
 to England, where she continued for five years till her death, 
 with the exception of a visit of a few months to Scotland; never 
 having, after first leaving Scotland, any permanent place of 
 residence, but living in furnished lodgings and hotels and 
 sometimes with friends, both when on the Continent and in 
 England. Upon these facts it was held that she had acquired 
 a Scotch domicil before leaving Scotland for the first time, and 
 that she retained this domicil at her death, notwithstanding the 
 fact " that she was under an engagement to be married to a 
 gentleman in England a considerable time before she died." 
 The Lord Ordinary (Lord Wood) said : " Nor does a matri- 
 monial engagement indicate intention to change, for it is a 
 mere intention to change da futuro, and that has no effect till 
 it is actually accomplished ; and it is fallacious to imagine 
 that an engagement to marry an English merchant at some 
 future time is equivalent to an engagement to settle perma- 
 nently in England." The court (Lord Jeffrey dissenting) 
 adhered ; Lord FuUerton remarking : " Had there been any- 
 thing to connect the removal to a residence in England with 
 the intended marriage, — if, for instance, the fact had been 
 that the marriage was to be immediately contracted with a 
 gentleman fixed in England, and that the lady had gone to 
 England in contemplation of the marriage, — there might have 
 been some ground for connecting her removal to England 
 with the prospect of permanently remaining there. But here 
 the two circumstances have no connection with each other. 
 It is not said that any time was fixed for the marriage ; the 
 parties are said to have been engaged, but an engagement is 
 a term of indefinite continuance ; and the statement is quite 
 consistent with the supposition that she was to return and 
 resume de facto her domicil in Scotland." Lord Jeffrey, on 
 the other hand, thought continued presence in England and 
 engagement to marry there sufficient to constitute domicil. 
 
 509 
 
§ 410.] THE LAW OP DOMICIL. [CHAP. XXIII. 
 
 CHAPTER XXIII. 
 
 CRITERIA OF DOMICIL {continued), — RESIDENCE AND ENGAGING IN 
 BUSINESS, MODE OP LIVING, OWNERSHIP OP REAL ESTATE, ETC. 
 
 § 410. Residence and Engaging in Business. — Residence in 
 a place and engaging in business there have generally been 
 considered as evidence of animus manendi^ the value de- 
 pending much, however, upon the length of the residence and 
 the nature of the business. If the latter be of an apparently 
 permanent character, or — as in Cockrell v. Cockrell ^ — of 
 great lucrativeness, the presumption is strong. But in many 
 cases engaging in business for even a long time has been held 
 insufficient to show a change of domicil. Thus, in Jopp v. 
 Wood,^ it was held that a Scotchman engaging in business in 
 India for twenty-five years did not thereby change his domi- 
 cil ; and in Be Capdevielle * it was similarly held with regard 
 to a Frenchman who had resided and engaged in business in 
 England for twenty-nine years ; and for further illustrations 
 the learned reader is referred to the cases already mentioned 
 under the discussion of the effect of length of residence.^ 
 
 With regard, however, to the case of Jopp v. Wood, it may be 
 said that in order to raise a presumption of animus manendi 
 
 1 Cockrell v. Cockrell, 2 Jur. (n. s.) High, Appellant, 2 Doug. (Mich.) 515 ; 
 
 727 ; AUardice v. Onslow, 33 L. J. Ch. State v. Frest, 4 Harr. (Del.) 538. In 
 
 434 ; Drevon v. Drevon, 34 L. J. Ch. Bremer v. Freeman, 10 Moore P. C. C. 
 
 129 ; King v. Foxwell, L. E. 3 Ch. D. 306, the fact of long residence " with- 
 
 618 ; Moore v. Darell and Budd, 4 Hagg. out any business or occupation " was 
 
 Eccl. 346 ; Shelton v. Tiffin, 6 How. relied upon by the Privy Council as a 
 
 163 ; Mitchell v. United States, 21 Wall, significant fact tending to show acquisi- 
 
 350 ; Kennedy v. Ryal, 67 N. Y. 379 ; tion of domicil. 
 Matter of Hawley, 1 Daly, 531 ; Hood's " Supra. 
 
 Estate, 21 Pa. St. 106 ; Smith v. Croom, » 34 Beav. 88 ; affirmed 4 De G J 
 
 7 Fla. 81 ; White v. White, 3 Head, 404. & S. 616. 
 Engaging in business is a particularly * 2 Hurl. & Colt. 985. 
 valuable test in the case of an unmarried ^ Supra, § 393 et seq, 
 man. Story, Confl. of L. § 47 ; Rue 
 
 610 
 
§ 413.] BUSINESS, MODE OP LIVING, ETC. [CHAP. XXIII. 
 
 in India, or indeed in any other Eastern country, somewhat 
 different and more cogent facts are necessary tlian would be 
 required to found a similar presumption with respect to any 
 European or American State ; the general presumption of fact 
 founded upon the usual practice in such cases, being that an 
 European residing in an Eastern country expects ultimately 
 to return to his native country. 
 
 § 411. Id. Opinions of the Civilians. — The Civilians seem 
 to have been inclined to look upon the fact of engaging in 
 trade as an indication of temporary residence rather than 
 otherwise.' This was doubtless mainly because formerly resi- 
 dence for such purpose was usually but temporary, — perma- 
 nent settlement in trade being an exception and very far from 
 the rule. But with the development of international law, and 
 the greater protection given to the rights and property of for- 
 eign subjects by the governments of almost all countries in 
 the most modern times, the disposition of men to settle per- 
 manently for purposes of commerce in foreign countries has 
 increased, and has occasioned a modification of these views. 
 
 § 412. Id. Municipal Domioil. — In cases of municipal 
 domicil, residence and engaging in business is ordinarily ac- 
 cepted as strong proof of animus manendi. 
 
 § 413. Place of Residence preferred to Place of Business. — 
 As between residence and place of business, the former is 
 preferred as the domicil,' particularly as we have seen in the 
 case of a married man who resides with his family or returns 
 to them at intervals.^ In determining the effect of residence, 
 the sleeping-place is an important element.^ If a person 
 have more than one dwelling-house, the one in which he 
 sleeps or passes his nights will govern.* If he works and 
 
 1 Voet, Ad Pand. 1. 5, t. 1, no. 98 ; ton v. ITortli Bridgewater, 23 Pick. 170; 
 
 Donellus, De Jure Civil:, 1. 17, c. 12, Hill v, Spangenberg, 4 La. An. 653 ; 
 
 p. 978 b, no. 50 ; Zangeras, De Ex- McKowen v. McGuire, 15 id. 637. 
 cept. pt. 2, 0. 1, nos. 31-54 ; Van Leeu- ^ gupra, § 402. 
 wen, Cens. Forens. 1. 8, c. 12, no. 5 ; ' Abington v. North Bridgewater, 
 
 Henry, For. Law, pp. 193, 194, 197, 201 supra; Commonwealth «. Kelleher, 115 
 
 et seq. ; Mascardus, De Probat. concl. Mass. 103 ; and Cooper v. Galbraith, 3 
 
 535, no. 23. Wash. C. Ct. 546. 
 
 1 Dinning v. Bell, 6 Low. Can. 178 ; * Abington v. North Bridgewater, 
 
 Coopers. Galbraith, 3 "Wash. C. Ct. 546; supra; and see Commonwealth v. Kel- 
 
 Greene v. Greene, 11 Pick. 410 ; Abing- leher, snpra. 
 
 511 
 
I 415.] THE LAW OP DOMICIL. [CHAP. XXIII. 
 
 boards in one town and sleeps in another, the latter is to be 
 preferred.^ 
 
 § 414. Mode of Living. — In Moorhouse v. Lord,^ Lord 
 Chelmsford says : " In a question of change of domicil, the 
 attention must not be too closely confined to the nature and 
 character of the residence by which the new domicil is sup- 
 posed to have been acquired." " Domum autem accipimus, 
 sive in propria domo, quis habitet, sive in conducta, sive gra- 
 tis, sive hospitio receptus sit ; " ^ and what is here said of 
 domus might with equal propriety be said of domicilium. 
 " Le vieux garQon a son principal ^tablissement dans sa petite 
 chambre solitaire, comme le plus opulent pfere de famille dans 
 son hStel, comme le n^gociant dans sa maison de commerce."-^ 
 " The apparent or avowed intention of constant residence, not 
 the manner of it, constitutes the domicil," says President 
 Eush in an oft-quoted passage in Guier v. O'Daniel;* and he 
 goes even so far as to say, " On a question of domicil the 
 mode of living is not material, whether on rent, at lodgings, 
 or in the house of a friend." But this last expression is not 
 strictly accurate ; for while the mode of living is often of little 
 importance, yet it is not always so, inasmuch as it sometimes, 
 indeed often, serves to throw light upon the intention of the 
 person whose domicil is in question. Thus it is much easier 
 to presume a change of domicil, when a person goes to a new 
 place and there buys land and erects for himself and occupies 
 a dwelling-house, particularly if at great expense in propor- 
 tion to his means, or if he buys a dwelling-house and fits it 
 up to suit the wants and tastes of his family, than if the 
 same person — the other circumstances remaining the same 
 — took lodgings in a hotel or boarding-house. 
 
 § 415. Residence in Hotels or Temporary Lodgings. — There 
 is nothing in the latter mode of living per se inconsistent with 
 an intention to remain permanently ,i but it is not as strongly 
 indicative of such intention as the former .2 This subject was 
 
 6 Commonwealth v. Kellelier, supra. i Castor v. Mitchell, 4 Wash. C. Ct. 
 
 1 10 H. L. Gas. 272, 286. 191 ; Burch v. Taylor, 1 Phlla. 224 ; 
 
 Inst. 4, tit. 4, § 8. Hart v. Horn, 4 Kans. 232. 
 8 Demolombe, Cours de Code Napo- 2 Aikman v. Aikman, 3 Macq. H. L. 
 
 Uon, t. 1, no. 344. Cas. 854 ; Dupuy v. Wurtz, 53 N. Y. 
 
 * 1 Binn. 349, note. 656. ' ^ ' 
 
 612 
 
§ 416.] BUSINESS, MODE OF LIVING, ETC. [CHAP. XXIII. 
 
 discussed to some extent in Aikman v. Aikman,^ where Lord 
 Wensleydale used this language : " 1 do not say that in order 
 to obtain a domicil in a country a man must necessarily have 
 a house of his own and reside in it. Circumstances may be 
 so strong as to show a fixed purpose of abandoning his own 
 country and making his home in another, and to show also 
 the accomplishment of that object, though he lives in inns or 
 temporary lodgings ; but such cases are rare." Lord Cran- 
 worth said, in the same case : " I will not say in point of law 
 that a person may not acquire a domicil by residence at a 
 hotel ; but it can rarely happen, as a matter of fact, that such 
 residence is intended to be of a permanent character." But 
 in view of the fact that at the present time so many persons 
 permanently resident live in hotels and boarding-houses, the 
 ground taken by their lordships seems too strong, particu- 
 larly as applied to g'wasi-national and municipal domicil ; and 
 it might be better to say that such mode of living is in itself 
 but equivocal. 
 
 § 416. Residence in Iieased Houses or Lodgings. — The same 
 may be said of leases of dwelling-houses or lodgings for short 
 terms ; no evidence of animus manendi can ordinarily be 
 drawn from such source,^ although the opposite inference 
 does not necessarily result.^ However, the leasing may be 
 attended by such circumstances as would show great uncer- 
 
 ' Supra. The Lord Chancellor, Gloucester Place, and formed an estab- 
 
 Carapbell, said in the same case : " A lishment there, has been much relied 
 
 new domicil might certainly be acquired upon, and in the absence of better evi- 
 
 by a person who might be living in dence of intention as to his future domi- 
 
 lodgings or in a hotel." cil, might be important as affording 
 
 1 Whicker v. Hume, 7 H. L. Gas. evidence of such intentioii, but cannot 
 124 ; Moorhouse v. Lord, 10 id. 272 ; be of any avail when from the corre- 
 Pitt V. Pitt, i Macq. H. L. Cas. 627 ; spondence the best means are afforded of 
 Bell V. Kennedy, L. R. 1 Sch. App. 307 ; ascertaining what his real intentions 
 Sonierville v. Somerville, 5 Ves. Jr. 760; were. The having a house and an ea- 
 Douglas V. Douglas, L. E. 12 Eq. Cas. tablishment in London is perfectly con- 
 6l7; Isham v. Gibbons, 1 Bradf. 69. sistent with a domicil in Scotland." In 
 
 2 Munro v. Munro, 7 CI. & Fin. 842; Bremer v. Freeman, the testatrix took 
 Bremer v. Freeman, 10 Moore P. C. C. apartments upon short leases, renewed 
 306 ; Doucet v. Geoghegan, L. R. 9 Ch. repeatedly for a period of fifteen years, 
 D. 441. In Munro 1). Munro, the report and furnished them herself. So in 
 does not state the length of the lease, but Douoet v. Geoghegan, the testator re- 
 the house was in fact occupied about fused to take a lease for a longer term 
 five years. Lord Cottenham said ; than three or four years ; but this he 
 "That he took a lease of the house in renewed repeatedly. 
 
 33 513 
 
§ 417.] THE LAW OP DOMICIL. [CHAP, XXIII. 
 
 tainty of purpose, and to that extent aid in defeating the 
 proof otherwise tending to show a change of domicil. Thus, 
 in Whicker v. Hume,'' the fact that the testator, a domiciled 
 Englishman, upon going to Paris, took a lease of a house 
 there for three, six, or nine years, with the option of quitting 
 it at any time upon six months' notice, was relied upon to 
 some extent in the House of Lords as indicating temporary 
 animus manendi. On the other hand, taking a lease for a 
 long term, building a large and expensive house and residing 
 in it with wife and family, were relied upon in Piatt v. Attor- 
 ney-General* as strong evidence of permanent residence. In 
 De Bonneval v. De Bonneval,^ Sir Herbert Jenner considered 
 the leasing of a dwelling-house in England for eight years 
 strong evidence of animus manendi if followed up by con- 
 tinued residence, but held it to be overbalanced in that case 
 by other circumstances. 
 
 § 417. Ownership of Dwelling-house or other Real Estate. — 
 Papiniaii ^ says : " Sola domus possessio, quas in aliena civitate 
 comparatur, domicilium non facit." The mere fact of owner- 
 ship of a house or other real estate at a particular place is 
 of little importance ; but the manner of, and circumstances 
 attending, the acquiring or disposing of it, the treatment of 
 it, and in some cases the failure to get rid of it, serve to 
 some extent to let us into the mind of the owner. When the 
 question is as to the abandonment of the domicil of origin, 
 the ownership and retention of real estate there — particu- 
 larly a dwelling-house, however acquired — is of some value,^ 
 
 ' Supra. Similar was Moorhouse v. an Englishman, but at the same time it 
 Lord, where a lease was taken for three is a circumstance to be taken into con- 
 years, determinable at three months' sideration." 
 °°t'<"^- 1 Dig. 50, t. 1, 1. 17, § 13. 
 
 * L. E. 3 App. Cas. 336. 2 Munro v. Miinro, 7 CI. & Fin. 842 ; 
 
 " 1 Curteis, 856. So also Drevon v. Moorhouse v. Lord, 10 H. L. Cas. 272 ; 
 Drevon, 34 L. J. Ch. 129; Attorney- Somerrille u. Somerville, 5 Ves. Jr. 750 ;' 
 General v. Pottinger, 6 Hurl. & Nor. Curling v. Thornton, 2 Add. 6 ; Forbes 
 733; and Stevenson u Masson, L. E. 17 v. Forbes, Kay, 341 ; Butler v. Hopper, 
 Eq. Cas. 78. In Drevon u. Drevon, 1 Wash. C. Ct. 499 ; Dupuy ■;;. Wurtz, 
 Kindersley, V. C, says respecting the 53 N. Y. 556 ; Barton v. Irasburgh, 33 
 tact of taking a long lease for business Vt. 159 ; Heirs of Holliman v. Peebles, 
 purposes : " That is a circumstance eer- 1 Tex. 673. In Butler ». Hopper, "Wa.sh- 
 tamly not necessarily importing that he ington, J., said : •' But will it be con- 
 ceased to be a Frenchman and became tended that if a man removes from one 
 614 
 
§ 419.] BUSINESS, MODE OP LIVING, ETC. [CHAP. XXIII. 
 
 inasmuch as it adds another tie by which the person is bound 
 to the home of his youth, and to that extent strengthens the 
 presumption of non-abandonment. And the value of such 
 evidence is increased when the person whose domicil is in 
 question improves such property, or renders it more fit for 
 occupancy, or adds to it by the purchase of neighboring real 
 estate.* The same rule applies to a certain extent also to 
 acquired domicil. Thus, in Maxwell v. McClure,* the reten- 
 tion of a dwelling-house at the place of acquired domicil was 
 considered a strong circumstance against reverter. The im- 
 portance of ownership of real estate as evidence of animus 
 revertendi is, however, affected so much by special circum- 
 stances, often slight, that it is impossible to draw any lines 
 or lay down any definite rule with regard to it. It has been 
 frequently held to be destroyed by proof of purchase of real 
 estate, accompanied by residence, elsewhere.^ 
 
 § 418. Sale of D-welling-house or other Real Estate. — The 
 sale of real estate, particularly a dwelling-house, at the place 
 of domicil, whether acquired or of origin, accompanied by 
 removal elsewhere, is some evidence of animus non rever- 
 tendi,^ but is not conclusive.^ 
 
 § 419. Purchase of Dwelling-house or other Real Estate. — 
 The purchase of real estate at a new place, accompanied by 
 
 state to another, with an intention of ^ Anderson v. Laneuville, 9 Moore 
 making the latter his permanent abode, P. C. C. 325, s. o. 2 Spinks, 41 ; Piatt 
 he is not domiciliated there, because he v. Attorney- General, L. E. 3 App. Cas. 
 has left behind him an estate which he 336 ; Hairston v. Hairston, 27 Miss. 
 cultivates, sometimes visits (no matter 704 ; Succession of Franklin, 7 La. An. 
 how often, or how long in each year), 395 ; New Orleans v. Shepherd, 10 id. 
 and whilst there, keeps house, and is 268. See also Weston v. Weston, 14 
 even elected into the Legislature of the Johns. 428, where the retention of' the 
 State he has left ? These circumstances ownership of real estate and the con- 
 are of prodigious weight, I admit, to tinuance of the wife at the place of for- 
 repel the idea of a change of domicil ; mer domicil were held to be overborne 
 but strong as they are, evidence might by other evidence. Similar cases are 
 have been given to the jury, sufficient to numerous. 
 
 warrant them in the conclusion they have i Udnj v. Udny, L. R. 1 Sch. Am. 
 
 ^ra-vm" 44] ; Stevenson v. Masson, L. E. 17 Eq. 
 
 » Munro v. Munro, supra; Somer- Cas. 78; Hamilton v. Dallas, L. E. 1 
 
 ville e. Somerville, supra; Moorhouse Ch. D. 257 ; Kingr. Foxwell, 3 id. 518 ; 
 
 V. Lord, s^ipra; Forbes ^). Forbes, supra. Hindmau's Appeal, 85 Pa. St. 466. 
 
 * 6 Jur. (n. s.) 407. See also Isham '^ Chaine ». Wilson, 1 Bosw. (N. Y. ) 
 
 V. Gibbons, 1 Bradf. 69. 673 ; White v. White, 3 Head, 404. 
 
 515 
 
§ 420.J THE LAW OF DOMICIL. [CHAP. XXIII. 
 
 residence there, has been accepted in many cases as evidence 
 of animus manendi,^ particularly where the person whose 
 domicil is in question has expended a considerable sum of 
 money in improving such estate and in fitting it up in a man- 
 ner suitable for the permanent residence of himself and fam- 
 ily .^ But such evidence is not decisive, if from the other facts 
 in the case animus revertendi appears.* Thus, for instance, 
 in Gillis v. Gillis, a person was held to have retained his Irish 
 domicil of origin notwithstanding that he had resided in Prance 
 for nineteen years, during the last twelve of which he had 
 lived in a house purchased by him there ; it sufficiently ap- 
 pearing to the court that his residence in Prance was for the 
 benefit of his health, for the improvement of which, to the 
 extent of permitting him to return to and remain in his native 
 country, he had constantly hoped. The same may be said in 
 case the purchase is for the purpose of future and not present 
 residence,* or for a mere investment and not for a home.* The 
 purchase of real estate at the place of domicil of origin will 
 naturally strengthen the presumption of animus revertendi,^ 
 but will not necessarily render it conclusive.^ 
 
 § 420, Location of Personal Property. — The location of 
 one's personal property is a circumstance to which in modern 
 law usually little weight is attached in determining his domi- 
 cil. In the Roman Law probably it was different ; the loca- 
 tion of the " fortunarum summa " being one of the chief tests 
 of domicil laid down in the definition contained in the Code ; 
 
 1 Anderson v. LaneuvUle, 9 Moore ^ gge generally the cases cited in the 
 
 P. C. C. 325, s. c. 2 Spinks, 41 ; Piatt last note, but particularly Piatt 
 
 V. Attornej-'-General, L. E. 3 App. Cas. Attorney-General. 
 336 ; Attorney-General v. Pottinger, 6 » qhh^ „_ Gillis, Ir. E. 8 Eq. 697 
 
 Hurl. & Nor. 733 ; Hoskins v. Matthews, and see Crookenden v. Fuller, 1 Swab, 
 
 8 De G. M. & G. 13 ; Drevon v. Drevon, & Tr. 441. 
 34 L. J. Ch. 129 ; Shelton v. Tiffin, 6 * Attorney-General v. Dunn, 6 Mees, 
 
 How. 163 ; Williamson v. Parisien, 1 &W. 511 ; State v. Hallett, 8 Ala. 1.59 ; 
 
 Johns. Ch. 389 ; Hegeman v. Fox, 31 and see supra, § 177. 
 Barb. 475 ; Hood's Estate, 21 Pa. St. « Hayes v. Hayes, 74 111. 312. 
 
 106 ; New Orleans v. Shepherd, 10 La. ^ Moorhouse v. Lord, 10 H. L. Cas. 
 
 An. 268. Some of the English cases 272 ; Succession of Franklin, 7 La. An. 
 
 above are cases of long leases, but of 395. 
 
 course the efficacy of such evidence can- ' Drevon v. Drevon, supra. 
 not depend upon whether the interest in 
 lands is freehold or less than freehold. 
 
 516 
 
§ 420.] BUSINESS, MODE OP LIVING, ETC. [CHAP. XXIII. 
 
 and doubtless the phrase was largely applicable to movable 
 possessions. The conditions of life were then very different, 
 and the means of personal locomotion and of transferring 
 personal property from place to place and from country to 
 country are now so much improved as to render the same 
 principle no longer applicable. Still, like other circumstances 
 in the life of a man, the collection of his personal property at 
 a particular point may give some indication of his intention 
 with respect to his residence there. ' 
 
 517 
 
S 422.] THE LAW OP DOMICIL. [CHAP. XXIV. 
 
 CHAPTER XXIV. 
 
 CRITERIA OP DOMICIL (continued'), — DOUBLE RESIDENCE. 
 
 § 421. Difficult to determine the Domicil of a Person who re- 
 sides in different Places. — It is sometimes very difficult to 
 locate the domicil of a person who has domestic establish- 
 ments in different places, or who resides in different places at 
 different seasons of the year. We have seen that among the 
 Roman jurists there was a difference of opinion concerning 
 the case of one who appeared to be equally established in 
 several places ; some holding that he had several domicils, 
 while Labeo held that he had none, and Celsus that the loca- 
 tion of his domicil depended upon his choice and intention.^ 
 The remarkable case of two contemporary residences put by 
 Lord Alvanley at the conclusion of his judgment in Somer- 
 ville V. Somerville ^ has already been referred to and discussed. 
 In the same case he lays it down that "a merchant whose 
 business lies in the metropolis shall be considered as having 
 his domicil there, and not at his country residence ; " while 
 " a nobleman or gentleman having a mansion-house, his resi- 
 dence in the country, and resorting to the metropolis for any 
 particular purpose, or for the general purpose of residing in 
 the metropolis, shall be considered domiciled in the country." 
 But this distinction, which was doubtless founded upon the 
 usual habits and customs of persons belonging to the two 
 classes mentioned, is far from being applicable to all cases. 
 And, indeed, no definite rule upon the subject has been or per- 
 haps can be laid down. 
 
 § 422. National Domicil. — Where tte question is one of 
 national domicil no doubt the principle that the former place 
 of abode must be completely abandoned as a place of abode 
 before a new domicil can be acquired,^ should be applied with 
 great strictness ; and hence, where a person has domestic 
 
 1 Supra, § 88. 25 Ves. Jr. 750. l Supra, 151 et scq. 
 
 618 
 
§ 423.] 
 
 DOUBLE RESIDENCE. 
 
 [chap. XXIV. 
 
 establishments in several couutries, he must be presumed to 
 retain his former domicil as long as he retains a domestic 
 establishment in the country where such domicil was. This, 
 however, probably would not exclude the possibility of change 
 in case an establishment is kept up in such country merely for 
 his accommodation upon occasional visits.^ But upon this 
 point there was, as we have already seen, considerable diversity 
 of opinion among the law lords who took part in the decision of 
 Maxwell v. McClure, Lord Wensleydale expressing himself as 
 unable to conceive a case in which a change of domicil could 
 occur so long as a residence was retained at the place of former 
 domicil. 
 
 § 423. Municipal Domicil. — The greatest difficulty in ascer- 
 taining which of two contemporaneous residences shall be con- 
 sidered the domicil arises in cases of municipal domicil. The 
 presumption of continuance of an ascertained or admitted 
 domicil, of course, applies in cases of this class,^ although 
 
 ^ See Lord Campbell in Aikman v. 
 Aikman, 3 Macq. H. L. Cas. 854 ; and 
 Lords Campbell and Cranworth in 
 Maxwell v. McClure, 6 Jur. (u. s.) 
 407 ; supra, § 160, notes 5 and 6. 
 
 1 Gilman v. Gllman, 52 Me. 165. 
 Davis, J., said : "A person may have 
 two places of residence, for purposes of 
 business or pleasure. But in regard to 
 the sncoesslon of his property, as he 
 must have a domicil somewhere, so he 
 can have only one. It is not very un- 
 common for wealthy merchants to have 
 two dwelling-houses, one in the city and 
 one In the country, or in two different 
 cities, residing in each a part of the 
 year. In such cases, looking at the 
 domestic establishment merely, it might 
 be difficult to determine whether the 
 domicil was in one place or the other. 
 In the case of SomervlUe v. Somerville, 
 it is stated as a general rule, ' that a 
 merchant whose business is in the me- 
 tropolis shall be considered as having 
 liis domicil there, and not at his country 
 residence.' But no such rule can be 
 admitted. The cases differ, and are dis- 
 tinguished by other facts so important 
 that the domicil cannot always be held 
 
 to be in the city. It is frequently the 
 case that the only real home is in the 
 country ; so that while some such mer- 
 chants talk of going into the country to 
 spend the summer, others with equal 
 propriety speak of going into the city to . 
 spend the winter. If any general rule 
 can be applied to such cases, we ^hink 
 it is this : that the domicil of origin, 
 or the previous domicil, shall prevail. 
 This is in accordance with the general 
 doctrine that the forum originis remains 
 until a new one is acquired. And this 
 would generally be in harmony with the 
 other circnmstances of each case. If 
 the merchant was originally from the 
 country, and he keeps up his household 
 establishment there, his residence in the 
 city will be likely to have the character- 
 istics of a temporary abode ; while if 
 his original domicil was in the city, and 
 he purchases or builds a country-house 
 for a place of summer resort, he will not 
 be likely to establish any permanent re- 
 lations yirith the people or the institu- 
 tions of the town in which he is 
 located." See also Harvard College v. 
 Gore, 5 Pick. 370. 
 
 619 
 
S 424.J THE LAW OP DOMICIL. [CHAP. XXIV. 
 
 not with the same force or to the same extent as in cases of 
 national or even quasi-n&tional domicil. And therefore, while 
 the burden of showing a change of municipal domicil rests 
 upon him who alleges it, it is discharged by showing slighter 
 facts than, and without the necessity of proving abandonment 
 to the same extent as, in the cases of national domicil.^ Thus 
 a person, under some circumstances, may change his domicil 
 from one municipal district to another, although he has not 
 abandoned the former as a place of abode, but still retains a 
 household establishment there, and resorts thither to spend a 
 large portion of his time.^ But what circumstances shall con- 
 trol or what shall be the extent of the abandonment, if at all, 
 of the one place, or establishment in the other, it is impossible 
 to state in advance. Each case must be determined by its own 
 circumstances, and that place must be adjudged to be the domi- 
 cil which bears, most of all, the characteristics of " home." 
 
 5 424. May a Person having two Residences select his Place 
 of DomioU? — Into the determination of the question the 
 choice and selection of the person often enter largely ; but 
 such choice and selection must usually be evidenced by acts, 
 and will not be permitted to control a preponderance of evi- 
 dence in favor of another place.* It is sometimes said that 
 
 2'See szipra, § 180. he would pay no more taxes in Boston ; 
 
 s Cabot 1). Boston, 12 Cush. 52 ; that in the assessment of the following 
 
 Thayer v. Boston, 124 Mass. 132. The year his taxes were increased, and he 
 
 same is true to a certain extent in cases accordiiig'y gave notice to the assessors 
 
 of quasi-national domicil. New Orleans of Boston and to the assessors of Lan- 
 
 u. Shepherd, 10 La. An. 268. See also caster that he had removed his residence 
 
 Succession of Franklin, 7 id. 395. to the latter place, where he should he 
 
 * Thayer v. Boston, supra. In that thereafter taxed ; that the plaintiff was 
 case, (an action to recover hack tax paid horn in Lancaster, in 1808, and, at the 
 under protest) the subject was con- time of giving the notice, owned the 
 sidered at some length. At the trial in place formerly belonging to his father, 
 the Supreme Court before Morton, J., where he was born ; that upon this place 
 "it appeared that in 1869 the plaintiff in 1860 he had erected a new dwelling- 
 was an inhabitant of Boston, where, house, and afterwards lived there a por- 
 sinoe his coming of age, he had lived tion of each year with his family, going 
 with his family and paid taxes ; that he from his house in Boston early in June, 
 therehad a dwelling-house and an office and retuming in October or November 
 for business, where his account-books following ; that, after giving the notices 
 and valuable papers were kept ; that he he continued to live there with his fam- 
 complaiuedof the increase of his taxes in ily as before, for a part of each year, 
 the previous year, and informed the as- voting and being taxed only in that 
 sessors that if they were again increased, town, taking part in town-meetings and 
 
 520 
 
§ 424.] 
 
 DOUBLE RESIDENCE. 
 
 [chap. XXIT. 
 
 in cases of doubt the person may select either place as his 
 domicilji but this is true only in a qualified sense ; and, more- 
 
 occasionally serving on town committees ; 
 that on May 1, 1876, he was, with his 
 family, in actual occupation of his house 
 in Boston ; that at this time, and since 
 1865, when he retired from business, he 
 had been engaged in no business except 
 looking after his property ; that he had, 
 for some years before 1869, entertained 
 the idea and intention, and declared the 
 intention, of at some time removing his 
 residence from Boston to Lancaster, but 
 had not, before 1869, fixed a time in his 
 mind. The plaintiff, on cross-examina- 
 tion, testified that Boston was, and had 
 been, ever since he was mamed, the 
 principal place of his social and domes- 
 tic life ; and that the greater part of his 
 family expenditures had been there 
 made ; that he thought he did no act to 
 change his residence in 1869, except to 
 give the notices, and that he may have 
 voted in Lancaster the following year ; 
 and that the mode of life and habits of 
 himself and family in regard to living in 
 Lancaster were very much the same after 
 giving the notice as before." 
 
 In his charge to the jury, Morton, J. , 
 said : " In very many cases, certainly in 
 the case of a very large majority of the 
 people of this Commonwealth, there is 
 no question about where a man's home 
 is. Most of us have but one dwelling- 
 house ; most of us have our business, our 
 family, connected solely with one town 
 or city of the Commonwealth, and every- 
 body recognizes at once that that is our 
 home. But there are a great many cases 
 where a man has one place, where he 
 and his family reside, in one town, and 
 he does business in another. J'or in- 
 stance, the observation and experience 
 of all of us teach us that the daily trains 
 running to and from the city of Boston 
 
 carry and return thousands of people 
 who live in the adjoining towns, and 
 yet who do their business in Boston. 
 Having their place of business there, the 
 centre of their business, their whole 
 business there, does not make them in- 
 habitants of Boston. They are still 
 inhabitants of that town where they 
 have their home ; where they have es- 
 tablished a permanent home for them- 
 selves, their wives, their children, their 
 families ; the town with which they are 
 identified as being inhabitants, as exer- 
 cising municipal duties, as holding mu- 
 nicipal offices, as having their abiding- 
 place ; the place, in other words, where 
 they have their home : I am compelled 
 to come back to the same word, because 
 neither in the English nor any other 
 language do I know of a synonym 
 or equivalent for the homely Saxon 
 word ' home.' Suppose a third case. 
 Suppose a man lives in one of the coun- 
 try towns adjoining Boston, and has 
 a house in the city which he occupies 
 during the winter months. Or reverse 
 the supposition, and suppose that a man 
 has a house in Boston, and has another 
 house by the seaside, or in some country 
 town, which he occupies during the 
 summer months. Which is his home ? 
 Now, you come to a case where it is a 
 little more difficult to decide. A man 
 can have but one home ; he cannot be 
 an inhabitant of two places at the same 
 time. But in the case which I am now 
 supposing, where a man has two houses, 
 it depends very largely indeed upon the 
 question, What is the honest purpose 
 and intention of that man himself? 
 Which of the two places does he in good 
 faith and honestly regard and recognize 
 as the home of himself and his family. 
 
 ^ Bumham v. Rangeley, 1 Woodb. 
 & M. 7; Lyman v. Fiske, 17 Pick. 231. 
 The better doctrine, however, appears 
 to be that when the rights of other 
 persons are affected, they should have 
 
 the privilege of treating either place as 
 the domicil. This is expressly pro- 
 vided by the Louisiana Civil Code, art. 
 38 (Eev. Civil Code, art. 42). See Vil- 
 lere v. Butman, 23 La. An. 515. 
 
 521 
 
424.J 
 
 THE LAW OP DOMICIL. 
 
 [chap. XXIV. 
 
 over, it is applicable only to cases of doubt, strictly speaking. 
 Said Shaw, C. J., in Lyman v. Fiske : " It is often a question 
 
 if he. has one ? And that question can be 
 substantially decided by the question of 
 the intention or purpose — in other words, 
 the choice — of the man. Suppose a little 
 closer case than either of these, which 
 will come very close to the case at bar ; 
 suppose a man has two houses, one in a 
 country town, as in Lancaster, and one 
 in the city, which he occupies, perhaps, 
 about an equal number of months and 
 weeks during the year. Which of these 
 is his home, and how are you to deter- 
 mine that question ? As I have said, 
 he can have but one home. And here, 
 too, the answer will depend very largely 
 upon the honest intention and purpose 
 of the man. Of course, each case, as 
 it comes before the jury, will have its 
 peculiar circumstances. There will be 
 something of greater or less weight to 
 indicate what is his true and real home, 
 such as, perhaps, paying taxes, acting 
 in municipal offices, voting in the one 
 town or the other, and in various ways 
 identifying himself with the town, and 
 recognizing it as his established, real, 
 substantial, and permanent home. I 
 cannot, in any more definite words, de- 
 fine what is meant by 'home.' You all 
 understand it. It is not capable of de- 
 finition, but you all understand what is 
 meant by a man's home. It is not 
 exactly equivalent to residence, but it 
 is the place where he has established a 
 home for himself and his family. Now, 
 you will apply these general principles, 
 which I have endeavored to illustrate by 
 supposing a variety of cases, to this case; 
 and you will bear in mind that the 
 question is, whether or not the plaintiff 
 was an inhabitant of Boston on May 1, 
 1876. It is admitted here that, prior to 
 1869, the plaintiff was, and had been for 
 a number of years, an inhabitant of 
 Boston, and, as contended by defend- 
 ant, the burden is upon him to show 
 that he has, either in 1869, or at some 
 time since, prior to May 1, 1 876, changed 
 his home or domicil to Lancaster. It 
 is very clear that the mere intention or 
 
 622 
 
 purpose formed, or expressed and de- 
 clared, to change his home is not enough. 
 He must do something which actually 
 works a change of home. The act of 
 change, and the intention of change, 
 must concur. What particular acts 
 would be sufficient to constitute a change 
 of home, I am not at liberty to state to 
 you, or to express any opinion about, 
 because I should be encroaching upon 
 the duties and rights which the law con- 
 fers upon you. Generally, where the 
 question is whether a man has changed 
 his home, it is easy to determine ; be- 
 cause, ordinarily, a man has either to 
 build or buy or hire a house for himself 
 and his family in the new town to which 
 he intends and proposes to remove ; 
 and that fact would ordinarily be so sig- 
 nificant a fact of his intention, and 
 where he moves into the house, that fact 
 would be so significant of his actual 
 change of his home, as would compel 
 the mind to the conclusion that he had 
 changed his domicil, and that he in- 
 tended to do so. The plaintiff was under 
 no such necessity, because he had two 
 establishments at the time, one in 
 Boston and one in Lancaster, both, ac- 
 cording to the evidence, complete estab- 
 lishments, fit to move into at a moment's 
 notice. But still, before he could effect 
 a legal change of his domicil, he must 
 have done something ; and it is for you 
 to inquire whether he has shown to you 
 tha.t he took stej)S the effect of which 
 was, really and in fact, to change his 
 domicil or his home to Lancaster. And, 
 as I said before, in regard to one of the 
 other cases which I supposed, what was 
 his honest purpose and intention is of 
 very great consequence in passing upon 
 this question ; because, if you are satis- 
 fied that a man has an honest intention 
 and purpose to change his home from 
 Boston to Lancaster, under the circum- 
 stances in which the plaintiff was placed, 
 that intention would be very significant, 
 as illustrating and giving character to 
 even trifling acts that he might have 
 
§ 424.] 
 
 DOUBLE RESIDENCE. 
 
 [chap. XXIV. 
 
 of great difficulty, depending upon minute and complicated 
 circumstances, leaving the question in so much doubt that a 
 
 done in carrying out that intention, — 
 trifling acts which he might have done 
 to remove his domicil in pursuance of 
 that intention. He was not, in this 
 case, under the necessity of establishing 
 a home there, in the sense of purchasing 
 or building a house, because he had one ; 
 but has he shown to you that, after 1869, 
 and prior to May 1, 1876, he did acts 
 which fairly amounted to a change of 
 his home from Boston to Lancaster, 
 accompanied on his part with an honest 
 purpose and intention to make Lancaster 
 his home in the future 1 Now, if he did, 
 then he established a home in Lancaster, 
 according to his choice, and he has a 
 right to maintain it there as long as he 
 may see fit. In the first place, in deter- 
 mining this question, where was the 
 plaintiffs residence, or domicil, or home, 
 on May 1, 1876, the fact of his personal 
 presence in Boston at that time is not 
 conclusive. A man may have his home 
 in one place, and yet may be personally 
 pi-esent in Boston. So that the fact that 
 he was personally present and living in 
 his house in Boston, with his family, 
 would not of itself be conclusive that 
 Boston was at that time his residence. 
 It is for you to take that fact into con- 
 sideration, and to say what bearing it 
 has upon the question where was his 
 real, substantial, and permanent home. 
 Whatever bearing you think it has upon 
 that, you have a right to give it ; but 
 further than that, the fact is not of any 
 consequence. So, in regard to the fact 
 that the plaintiff has, during the last five 
 or six years, spent a large part of the 
 time, with his family, in Boston, during 
 the winters and springs, that is not con- 
 clusive that he was an inhabitant of 
 Boston ; but, like the other fact to which 
 I have referred, it is a fact which you 
 are to consider, and inquire how far it 
 fairly bears upon the question which you 
 are to pass upon. The fact that any 
 man changes his home or his domicil for 
 the purpose of avoiding, or escaping, or 
 lessening his taxes, is of no consequence 
 
 whatever. If he does, with an honest 
 intention and really and actually, change 
 his home, the motive with which he-does 
 it is of no consequence. How far the 
 fact in this case, if such a fact be proved 
 to your satisfaction, that that was the 
 purpose or motive of the plaintiff in 
 making this change, bears upon the ques- 
 tion whether he did honestly and fairly 
 make the change, is a matter in regard 
 to which I have no right to say anything. 
 It is solely for your consideration. You 
 are, therefore, to take all the evidence 
 which has been put into this case, . . . 
 and give it such weight as you think it 
 ought to have on the issue upon which 
 you are to pass. You are to take all 
 the evidence and consider it, and say 
 whether or not the plaintiff has satisfied 
 you, that on May 1, 1876, he was not an 
 inhabitant of Boston. If he has failed 
 to satisfy you of that fact, then you 
 should find a verdict for the defendant. 
 But if, on the other hand, you are satis- 
 fied, by a fair preponderance of the evi- 
 dence, that he was not an inhabitant of 
 Boston on May 1, 1376, then it follows 
 that Boston had no right to tax him, 
 and you should return a verdict in his 
 favor." 
 
 The jury having returned a verdict 
 for the plaintiff, and the case having 
 been reported for the determination of 
 the full court, judgment was entered on 
 the verdict. Colt, J., delivering the 
 opinion of the court, said : "It is 
 always a question of fact where the 
 place of a man's domicil is. As to most 
 persons it is determined at once by the 
 decisive facts which show permanent 
 and unchanging residence in only one 
 place. As to such persons, the ques- 
 tion of domicil — that is, the question 
 where they are to be taxed, or where 
 they have a right to vote — presents no 
 difficulty. There can be no right of 
 election to the tax-payer between two 
 places, when one is already fixed by the 
 actual facts which go to establish dom- 
 icil. It is only when the facts which 
 
 523 
 
§ 424.J 
 
 THE LAW OP DOMICIL. 
 
 [chap. 
 
 XXIV. 
 
 slight circumstance may turn the balance. In such a case 
 the mere declaration of the party, made in good faith, of 
 his election to make the one place rather than the other 
 his home, would be sufficient to turn the scale. But it is a 
 
 estaUish permanent residence and dom- 
 icil are ambiguous and uncertain, in the 
 absence of any settled abode, and when 
 the real intention of the party cannot 
 be ascertmned, that the question becomes 
 difficult. It may then require an exam- 
 ination into the motives of the man, 
 his habits and character, his domestic, 
 social, political, and business relations, 
 for a series of years ; and the answer 
 will depend in the end upon the weight 
 of evidence in favor of one of two or 
 more places. It is evident that, with 
 the increasing number of those who live 
 each year in different places, the in- 
 creased facilities for travel, and the great 
 temptation to escape taxation by a 
 change of domieil, cases of the latter 
 description are becoming more common. 
 ... It is evident that the choice of the 
 tax-payer, as between two places of resi- 
 dence, is an element to be considered in 
 determining which is the real domieil; 
 but a choice in favor of one place will not 
 be permitted to control a preponderance 
 of evidence in favor of another. The 
 place of domieil, upon which so many 
 important municipal obligations and 
 privileges depend, is not left by the law 
 to the choice of the citizen, except only 
 as such choice may give character to ex- 
 isting relations and accompanying acts 
 of residence which are not in conflict 
 with it. As between different places, 
 it may depend on a mass of evidence, 
 which will generally include as one of 
 its items the declared intention and 
 choice of the party himself. The weight 
 to be given to that intention, however 
 honest, will depend largely upon the 
 condition of all the evidence. If the 
 evidence be equivocal and uncertain, 
 then the choice may be sufficient to 
 turn the scale ; if the weight of it be 
 one way, then an opposite intention or 
 wish will bo of little or no avail. 
 Holmes v. Greene, 7 Gray, 299. The 
 
 524 
 
 true rule was plainly recognized; in 
 Cheneiy v. Waltham, 8 Gush. 327. 
 The judge was there asked by the plain- 
 tiff, who sought to recover back a tax 
 paid to the defendant, to rule that if 
 the true dividing line between two towns 
 passed through an integral portion of 
 the dwelling-house occupied by him 
 and his family, then he had a right to 
 elect in which town he would be as- 
 sessed on his personal property and be- 
 come a citizen. This was refused, and 
 it was ruled that if the house was so 
 divided by the line as to leave that por- 
 tion of it in which the occupant mainly 
 and substantially performed those acts 
 and offices which characterized his home 
 (such as sleeping, eating, sitting, and 
 receiving visitors), in one town, then 
 the occupant would be a citizen of that 
 town, and no right of election would 
 exist ; and that if the house was so 
 divided by the line as to render it im- 
 possible to determine in which town the 
 occupant mainly and substantially per- 
 formed the acts and offices before re- 
 ferred to, then the occupant would have 
 a right of election, and his election 
 would be binding on both towns. The 
 rule thus laid down wa-s declared by the 
 full court to be sufficiently favorable to 
 the plaintiff, on the question of his right 
 to elect. In the law of domieil, it is 
 settled that a person can have but one 
 domieil at the same time for the same 
 purpose ; that domieil, once acquired, 
 remains until a new one is acquired ; 
 and that a new one is acquired only 
 by a clear and honest purpose to change, 
 which is carried into actual execution. 
 Applying these maxims to the facts, in 
 all disputed cases, it is the duty of 
 the court to submit each case to the 
 jury with instructions adapted to its 
 peculiar aspects." See also Weld v. 
 Boston, 126 Mass. 166, where a simi- 
 lar election was made without avail. 
 
§ 425.J ' DOUBLE RESIDENCE. [CHAP. XXIV. 
 
 question of fact for the jury, to be determined from all 
 the circumstances of the case. So it was left in the case 
 of Makepeace v. Lee, cited by the Chief Justice in 5 Pick. 
 378. The election of a man to pay taxes in one town rather 
 than another may be a good motive and a justifiable reason 
 for changing his habitancy ; and if such election is followed 
 up by corresponding acts, by which he ceases to be an in- 
 habitant of the one, and becomes an inhabitant of the other, 
 his object may be legally accomplished. But such an election 
 to be taxed in one town rather than anotlier is only one cir- 
 cumstance bearing upon the question of actual habitancy, 
 and to be taken in connection with the other circumstances, 
 to determine the principal fact. But the court are of opin- 
 ion that the effect of the instruction of the court on the 
 trial of this cause was to withdraw all the evidence from 
 the consideration of the jury, except the election of the 
 plaintiff to be taxed in Boston; that this direction was not 
 correct, and that the question whether the plaintiff was an in- 
 habitant of Waltham should have been left to the jury, upon 
 all the facts and circumstances of the case." 
 
 § 425. Domicil of a Person 'whose D'welling-bouse is on the 
 Dividing Line of two Districts. — Another aspect of double resi- 
 dence presents some difficulty, and has been treated very differ- 
 ently by different jurists ; namely, when the dwelling-house of 
 a person is upon the dividing line of two districts. According 
 to the French authorities,^ the principal entrance determines 
 the domicil, little importance being attached to the question 
 in which district the greater part of the house is found. The 
 Massachusetts cases,^ based upon the English cases of settle- 
 
 1 D'Argentrd, Consnet. Brit. art. ing particular facts, but whether all the 
 265 ; Merlin, Eepertoire, verb. Dom. facts and circumstances taken together, 
 § 111 ; TouUier, Droit Civil Fran^ais, tending to show that a man has his 
 t. 1, no. 78; Demolomhe, Cours de Code home or domicil in one place, over- 
 Napoleon, t. 1, no. 346 ; Duparc-Poul- balance all the like proofs tending to 
 lain, Principes de Droit, t. 2, p. 202. establish it in another ; such an in- 
 
 2 Abington •». North Erldgewater, quiry, therefore, involves a comparison 
 23 Pick. 170 ; Chenery v. "Waltham, of proofs, and in making that compari- 
 8 Cush. 827 ; Thayer v. Boston, 124 son there are some facts, which the law 
 Mass. 132. In Abington v. North deems decisive, unless controlled and 
 Bridgewater, Shaw, C. J., thus re- counteracted by others still more strin- 
 marked : "It depends, not upon prov- gent. The place of a man's dwelling- 
 
 525 
 
§ 425.] 
 
 THE LAW OP DOMICIL. 
 
 [chap. 2XIV. 
 
 ment and court leet, hold the person to be domiciled in that 
 district in which he mainly and substantially performs the 
 
 liouse isfirst regarded, in contradistinc- 
 tion to any place of business, trade, or 
 occupation. If he has more than one 
 dwelling-house, that in which he sleeps 
 or passes his nights, if it can be dis- 
 tinguished, will govern. And we think 
 it settled by authority, that if the dwell- 
 ing-house is partly in one place and 
 partly in another, the occupant must 
 be deemed to dwell in that town in 
 which he habitually sleeps, if it can be 
 ascertained. Lord Coke, in 2 Inst. 120, 
 comments upon the statute of Marl- 
 bridge respecting courts leet, in which 
 it says that none shall be bound to 
 appear, nisi in balivis uhi fuerunt con- 
 versantes ; which he translates, ' but in 
 the bailiwicks, where they be dwelling.' 
 His lordship's comment is this : ' If a 
 man have a. house within two leets, 
 he shall be taken to be conversant 
 where his bed is, for in that part of 
 the house he is most conversant, and 
 here conversant shall be taken to be 
 most conversant.' This passage, at first 
 blush, might seem to imply that the 
 entire house was within two leets. But 
 no man can be of two leets. 2 Doug. 
 538 ; 2 Hawk. P. C. c. 10, § 12. In- 
 deed, the whole passage, taken to- 
 gether, obviously means, a house partly 
 within one leet and partly within an- 
 other ; otherwise, the bed would be 
 within the two leets, as well as the 
 house. It is then an authority di- 
 rectly in point to show that if a man 
 has a dwelling-house situated partly 
 within jne jurisdiction and partly in 
 another, to one of which the occupant 
 owes personal service as an inhabitant, 
 he shall be deemed an inhabitant within 
 that jurisdiction within the limits of 
 which he usually sleeps. The same 
 principle seems to have been recognized 
 in other cases, mostly cases of settle- 
 ment depending on domicil. Eex v. 
 St. Olaves, 1 Str. 51 ; Colechurch v. 
 EadolifTe, 1 Str. 60 ; Eex v. Brighton, 
 
 5 T. R. 188 ; Eex v. Eingwood, 1 Maule 
 
 6 Selw. 381. I am aware that the same 
 
 526 
 
 difficulty may arise, as before suggested, 
 which is, that the occupant may not 
 always, or principally, sleep in one part 
 of his house ; or if he sleeps in one 
 room habitually, the dividing line of 
 the towns may pass through the room 
 or even across his bed. This, however, 
 is a question of fact depending upon 
 the proofs. When such a case occurs, 
 it may be attended by some other cir- 
 cumstance, decisive of the question. If 
 the two principles stated are well es- 
 tablished, and we think they are, they 
 are, in our opinion, sufficient to deter- 
 mine the present case. It becomes, 
 therefore, necessary to see what were 
 the facts of this case, and the instruc- 
 tions in point of law upon which it 
 was left to the jury. The plaintiffs 
 contended that two monuments pointed 
 out by them were true and genuine 
 monuments of the Colony line, and if 
 so, a straight line drawn from one to the 
 other, would leave the house in North 
 Bridgewater ; and the jury were in- 
 stracted, if they so found, to return a 
 verdict for the plaintiffs. But the jury 
 stated, on their return, that on this 
 point they did not agree, and therefore 
 that part of the instruction may be con- 
 sidered as out of the case. It is there- 
 fore to be taken, that in point of fact 
 the line ran through the house, leaving 
 a small part in Randolph and a large 
 part in North Bridgewater. In refer- 
 ence to this, the jury were instructed 
 that if that line would leave a habita- 
 ble part of the house in Randolph, the 
 verdict should be for the defendants ; 
 otherwise, for the plaintiffs. The jury 
 were also directed to iind, specially, 
 whether the beds of the family in which 
 they slept, and the chimney and fire- 
 place, were or were not inNorth Bridge- 
 water. The jury found a verdict for 
 the pl.iintiffs, which in effect deter- 
 mined, in point of fact, that the line 
 did run through the house, leaving a 
 small part in Randolph ; that the beds 
 and fireplaces of the house were on the 
 
§ 425.] 
 
 DOUBLE RESIDENCE. 
 
 [chap. XXIY. 
 
 acts and offices which characterize his home, such as eating, 
 sleeping, sitting, and receiving visitors, but, above all, where 
 
 North Bridgewater side of the line, and 
 that there was not a habitable part of 
 the house in Randolph. What was the 
 legal effect of this instruction to the 
 jury ? To understand it we must con- 
 sider what was the issue. The burden 
 of proof was upon the plaintiffs to 
 prove that Hill had his settlement in 
 North Bridgewater. But proving that 
 he had a dwelling-house standing part- 
 ly in North Bridgewater and partly in 
 Randolph would leave it wholly doubt- 
 ful whether he had his domicil in the 
 one or the other, provided that the line 
 passed the house in such a direction 
 as that either would have been suffi- 
 cient for the purpose of a habitation ; 
 because it would still be doubtful 
 whether he dwelt upon one or the other 
 side of that line. But if the line ran 
 in such a direction as to leave so small 
 a portion on one side, that it could not 
 constitute a human habitation, then the 
 position of the dwelling determined the 
 domicil. In any other sense, we see 
 not how the correctness of the instruc- 
 tion could be maintained. If the term , 
 ' habitable part of the house,' was in- 
 tended to mean a portion of the house 
 capable of being used with the other 
 part, for purposes of habitation, and the 
 whole constituting together a place of 
 habitation, then every part of the house 
 capable of being used, would be a habi- 
 table part. The instruction was, that 
 if a habitable part was in Randolph, the 
 occupant did not acquire a domicil in 
 North Bridgewater; it would be equally 
 true in law, that if a habitable part was 
 in North Bridgewater, he did not ac- 
 quire a domicil in Eandolph. If the 
 tenn 'habitable,' then, were used in 
 the restricted sense, capable of being 
 used as a part, and not as the whole of 
 a human habitation, the instruction 
 would amount to this, that living ten 
 years in a dwelling-house divided by an 
 imaginary line into parts, both of which 
 are useful and capable of being used as 
 parts of a dwelling-house, the occupant 
 
 would acquire no domicil. But this is 
 utterly inconsistent with the principles 
 of domicil. By leaving his domicil in 
 Abington, and living in the house in 
 question, Hill necessarily lost his dom- 
 icil in Abington, and necessarily acquired 
 one by living in that house ; and this 
 must be in either Randolph or Bridge- 
 water, and not in both. It may be im- 
 possible from lapse of time, and want 
 of evidence, to prove in which, and 
 therefore the plaintiffs, whose case de- 
 pends on proving affirmatively that it 
 was in North Bridgewater, may fail ; 
 nevertheless it is equally true, in itself, 
 that he did acquire a domicil in one, 
 and could not acquire one in both of 
 those towns. Suppose the proof were 
 still more deficient ; suppose it were 
 proved beyond doubt, that Hill lived in 
 a house, situated on a cleared lot of an 
 acre, through which the town line were 
 proved to run, but it were left uncer- 
 tain in the proof, on which part of the 
 lot the house was situated. It would 
 be true that he lost his domicil in 
 Abington, and acquired one in Ran- 
 dolph or North Bridgewater ; but it 
 being entirely uncertain which, the 
 plaintiffs would fail of proving it in 
 North Bridgewater, and therefore could 
 not sustain their action. So if the line 
 ran through a house in such a manner 
 that either side might afford a habita- 
 tion, then dwelling in that house would 
 not of itself prove in which town he 
 acquired his domicil, though he must 
 have acquired it in one or the other. In 
 this sense we understand the instruction 
 to the jury, and in this sense we think 
 it was strictly correct. If they should 
 find that the line so ran through the 
 house as to leave a part capable, of it- 
 self, of constituting a habitation in 
 Eandolph, then dwelling in that house, 
 though partly in North Bridgewater, 
 did not necessarily prove a domicil in 
 North Bridgewater. Under this in- 
 struction the jury found a verdict for 
 the plaintiffs, and we think it is evi- 
 
 627 
 
§ 425.] 
 
 THE LAW OP DOMICIL. 
 
 [chap. XXI?. 
 
 he habitually sleeps, if that can be ascertained. A similar 
 view has been taken in Maine.^ 
 
 The Supreme Court of Pennsylvania,* in a recent case, 
 
 dent from this verdict that they un- 
 derstood the instruction as we under- 
 stand it. The jury find that one corner 
 of the house, to the extent of two feet 
 and one inch, was in Randolph, but that 
 no habitable part of the house was in 
 Eandolph ; not, as we think, no part 
 capable of being used with the rest of 
 the house, for the purpose of habita- 
 tion, but no part capable, of itself, of 
 constituting a habitation ; from which 
 they draw the proper inference that 
 the habitation and domicil, and conse- 
 quently the settlement, was in North 
 Bridgewater. And if we look at the 
 fact, specially found by the jury, we 
 are satisiied that they draw the right 
 conclusion, and could come to no other. 
 If the line had divided the house more 
 equally, we think, on the authorities, 
 that if it could be ascertained where the 
 occupant habitually slept, this would be 
 a pi-eponderating circumstance, and, in 
 the absence of other proof, decisive. 
 Here it is found that all the beds, the 
 chimney, and fireplace were within the 
 North Bridgewater side of the line, and 
 that onlj' a small portion of the house, 
 and that not a side but a corner, was 
 within the Randolph side, and that so 
 small as to be obviously incapable of 
 constituting a habitation by itself. We 
 think, therefore, that the instruction 
 was right, and the verdict conformable 
 to the evidence." 
 
 In Chenery v. Waltham, the plain- 
 tiff requested the trial judge to instruct 
 the jury " that if the true dividing line 
 between the two towns passed through 
 an integral portion of the dwelling- 
 house occupied by Phelps and his fam- 
 ily, then he had a right to elect in 
 which town he would be assessed on 
 his personal property and become a 
 citizen." This he refused to do, but 
 did instruct them "that if the house 
 was so divided by the line as to leave 
 that portion of it in which the occu- 
 628 
 
 pant mainly and substantially performed 
 those acts and offices which character- 
 ized his home (such as sleeping, eating, 
 sitting, and receiving visitors), in one 
 town, then that the occupant would be 
 a citizen of that town, and that no 
 right of election would exist ; and that 
 if the house was so divided by the line 
 as to render it impossible to determine 
 in which town the occupant mainly 
 and substantially perfoi-med the acts 
 and offices before referred to, then the 
 occupant would have a right of election 
 in which town he would be a citizen ; 
 that his election would be binding on 
 both towns ; and that the jury, in pa-ss- 
 ing on the question of fact, must take, 
 into consideration the uses of the difier- 
 ent rooms in the house, and of the dif- 
 ferent parts of the several rooms. " Upon 
 verdict for the defendant the Supreme 
 Court overruled the exception of the 
 plaintiffs, saying: "The other ruling 
 of the court was surely sufficiently 
 favorable to the plaintiff. It might, 
 perhaps, be difficult to maintain the 
 entire accuracy of the ruling in regard 
 to the right of a party to elect where 
 he would be assessed, in the general 
 and unqualified terms in which it is 
 stated ; but if there be any error it is in 
 favor of the plaintiffs, and is one to 
 which they cannot except." 
 
 ' Judkins v. Eeed, 48 Me. 386, — a 
 tax case in which it was decided that, 
 when the dividing line of two districts 
 passes through the dwelling-house of a 
 person, his residence will be held to be 
 in that town in which the most neces- 
 sary and indispensable part of his house 
 is situated, especially if the outbuild- 
 ings and other conveniences are in that 
 town. 
 
 * Follweiler v. Lutz, 112 Pa. St. 
 107. This case was peculiar. The 
 house, which was used as a tavern, lay 
 upon the line of S. and L. counties ; 
 according to the testimony most favor- 
 
§ 425.] 
 
 DOUBLE RESIDENCE. 
 
 [chap. XXIV. 
 
 adopted a rule apparently different from either of the fore- 
 going ; namely, that the domicil is in such a case to be de- 
 termined by " the acts, declarations, and intentions " of the 
 person, showing in which district he elects to fix and maintain 
 his residence. 
 
 able to the defendants, only an incon- 
 siderable strip (about five feet out of 
 fifty-six) lying in the fprmer. Other- 
 wise the evidence did not show in which 
 county the person whose domicil was in 
 question, and his family, ate, slept, etc. 
 It appeared, however, that he had ob- 
 tained his tavern license from the court 
 of S. County, and had repeatedly voted 
 in said county. Upon these meagre 
 facts the jury found in favor of resi- 
 dence in S. County ; and the Supreme 
 Court, in affirming the judgment of the 
 court below, said : " The evidence shows 
 that the line of separation between the 
 two counties passes through the house 
 occupied by the person who made the 
 voluntary assignment. This fact cre- 
 ated doubt as to the county in which 
 he actually resided. Evidence was 
 therefore admissible to show by his 
 acts, declarations, and intentions, in 
 which county he elected to fix and 
 maintain his residence. The evidence 
 
 given to establish it was sufficient to 
 submit to the jury, and it was so done 
 in a, correct charge." Whatever may 
 be said of the actual result reached in 
 the case upon the meagre facts in evi- 
 dence, it is safe to assume that it was 
 so reached only because of the absence 
 of criteria such as those mentioned 
 in the Massachusetts cases. It would 
 certainly be. unsafe and unsound to al- 
 low a person, in opposition to the facts 
 of his daily and domestic life, to select 
 for himself a ' domicil in a county in 
 which an inconsiderable and unin- 
 habitable portion of his dwelling-house 
 happened to lie. Compare this case 
 with Ellsworth v. Gouldsboro, 55 Me. 
 94, where it was held that a person 
 does not acquire a settlement in a town 
 by voting and paying taxes there under 
 an erroneous belief that his dwelling- 
 house is within the limits of that 
 town. 
 
 34 
 
 529 
 
§ 426.] THE LAW OF DOMICIL. [CHAP. XXV. 
 
 CHAPTER XXV. 
 
 CRITERIA OP DOMICIL {continued), — PLACE OP DEATH AND BURIAL. 
 
 § 426. Place of Death. — The place of a man's death is of 
 little, if any, practical importance in determining his domicil.* 
 It certainly has no significance whatever in case any of the 
 prominent facts of his life are known. Theoretically, no doubt, 
 if nothing were known about him except the fact that he died 
 in a particular place, he would be assumed to have been dom- 
 iciled there, upon the principle that the place where a person 
 is found is prima facie his domicil ; ^ but it is scarcely possi- 
 ble to conceive of a judicial inquiry concerning domicil in 
 which no other fact than the place of death is brought for- 
 ward. The result of every such inquiry must almost necessa- 
 rily be either entire failure to fix the domicil of the deceased, 
 or the fixing of it by some of the facts of his life or of the 
 lives of his parents. 
 
 It has indeed been said that the place of death is prima 
 facie the domicil,^ and the language of President Rush * has 
 sometimes been quoted upon this subject. He said : " A man 
 is .prima facie domiciled at the place where he is resident at 
 the time of his death ; and it is incumbent on those who deny 
 it, to repel this presumption pi law, which may be done in 
 several ways. It may be shown that the intestate was there 
 as a traveller, or on some particular business, or on a visit, 
 or for the sake of health ; any of which circumstances will 
 remove the presumption that he was domiciled at the place of 
 his death." The learned judge might, however, have gone a 
 step farther, and have said that such presumption would be 
 
 1 Ommanneyu. Bingham, Roliertson, McNeil, Lord Pres. ; Harvard College 
 
 Pera. Sno. Appendix, p. 468 ; Johnstone v. Gore, 5 Pick. 370. 
 V. Beattie, 10 CI. & Fin. 42, 139, per Lord ^ See supra, § 375. 
 Campbell ; Somerville v. Somerville, 5 ' Guier v. O'Daniel, S Binn. 349, 
 
 Ves. Jr 750; Craigie ». Lewin,3Curteis, note; Kellar it. Baird, 5 Heisk. 39; 
 
 43.') ; Ponaldson v. McClure, 20 P. (So. Laneuville v. Anderson, 2 Spinks, 41. 
 Sess. Cas. 2d ser. 1867) 307, 315, per * Guier v. O'Daniel, supra. 
 
 630 
 
§ 426.] 
 
 PLACE OP DEATH AND BURIAL. [CHAP. XXV. 
 
 removed by merely showing a domicil formerly existing some- 
 where else; the presumption of continuance applying and 
 shifting the burden of proof upon those who allege a change.^ 
 In Somerville v. Somerville,^ Lord Alvanley, speaking par- 
 ticularly with reference to the ascertainment of domicil for 
 purposes of succession in cases where the person has had two 
 residences, observed : " There is not a single dictum from 
 which it can be supposed that the place of the death, iu such 
 a case as that, shall make any difference. Many cases are 
 
 ^ See supra, §§ 115, 151. It may be 
 added that the use by the learned judge 
 of the phrase, "where he is resident," 
 seems to indicate that he had in his 
 mind the case in which something more 
 is known of the deceased person than 
 the mere fact of his death in a particu- 
 lar place. 
 
 ' Supra. In Ommanney v. Bing- 
 ham, supra, Lord Loughborough, iu 
 pronouncing judgment, said : "The 
 first circumstance is, that he died in 
 Scotland, where some of his children 
 were toarded. This, however, of some 
 of the children being boarded in Scot- 
 land, is not mentioned as the ratio de- 
 cidendi, but is thrown in along with 
 the circumstance of his death. On that 
 circumstance, however, no stress can be 
 laid, for nothing is more clear than that 
 residence, purely temporaiy, has no 
 effect whatever in the creation of a 
 domicil. Precisely of this kind was 
 the residence of Sir Charles Douglas, 
 in Scotland, at the period of his death. 
 He had been appointed to the command 
 on a foreign station, and went down 
 to Scotland to take leave of such of his 
 children as happened to be there, with 
 all the hurry which was the necessary 
 consequence of a speedy and immediate 
 return. "When he set out for Scotland, 
 he was actually appointed. He had, 
 therefore, so very short a time to con- 
 tinue, that it is impossible to say or 
 imagine that hehad the remotest thought 
 of settling or remaining in Scotland at 
 the time when, unfortunately, his life 
 was closed. The time he had to spend 
 in Scotland, at that period, was limited ; 
 his stay was circumscribed ; an immedi- 
 
 ate return was indispensably requisite ; 
 and, lastly, the object he had in view, 
 in this journey to Scotland, was defin- 
 able, and is defined. He was there, 
 therefore, without idea or intention to 
 remain ; and, consequently, his last 
 visit to Scotland, and unexpected death, 
 can have no influence on the point of 
 his domicil." In Donaldson v. Mc- 
 Clure, Lord President McNeil re- 
 marked : Actual residence at a place 
 at the time of death "is a fact to be 
 taken into con.sideration in such cases, 
 but is not of itself a very strong fact. 
 It depends for its strength upon the 
 circumstances that surround it. It 
 may derive strength from the circum- 
 stances that surround it ; but that is a 
 strength which belongs to the circum- 
 stance more than to the mere fact that 
 Laurel Mount was the place where she 
 happened to die. In every case of 
 double residence, when the party resides 
 one period of the year at one place, 
 and another period of the year at an- 
 other place, the mere fact of dying at 
 one of the places will not fix the domi- 
 cil of the party to be there." In Laneu- 
 ville V. Anderson, 2 Spinks, 41, Sir John 
 Dodson said : "The place of death, it 
 was said, is to be considered as decisive, 
 or nearly decisive, on the point ; but 
 that, I think, has been ruled quite 
 otherwise. Prima fade it certainly is ; 
 but it may be repelled, like any other 
 circumstances. The presumption aris- 
 ing from the place of death is not very 
 strong of itself. It is only in a case of 
 doubtful domicil that that would have 
 effect." 
 
 531 
 
§ 427.] 
 
 THE LAW OF DOMICIL. 
 
 [chap. xxr. 
 
 cited in Denizart ^ to show that the death can have no effect ; 
 and not one that that circumstance decides between two dom- 
 icils.^ The question in those cases was, which of the two 
 domicils was to regulate the succession ; and without any 
 regard to the place where he died." 
 
 The writer may add, that so far as he is aware the place of 
 death has been relied upon in no British or American case as 
 in any degree contributing to determine the domicil.^ 
 
 § 427. Place of Burial. — The place of burial of a person is 
 of no consequence in the ascertainment of his domicil,^ unless 
 it has been selected by himself ; and then its value depends 
 much upon circumstances. The mere desire or direction to be 
 buried in a particular place has not been given much weight in 
 cases in which the question has arisen.^ Said Lewis, J., in a 
 Pennsylvania case : ^ " His desire to be buried in his native 
 
 ^ Vi})-i. Dom. nos. 16 and 17, and 
 passim. 
 
 ^ Here u.sing "domicil" really in 
 the sense of "residence." See supra, 
 §94. 
 
 ' Cochin, in the case of the Marquis 
 lie Saint-Pater, laid some stress npon 
 the fact of the deceased person dying 
 at the place of his origin, as evidence 
 that his original domicil had never been 
 changed, but only in connection with 
 the fact that he had passed the last 
 days of his life there (he had resided 
 in Maine during the entire eighteen 
 months preceding his death). He said: 
 " Secondement, le Marquis de Saint- 
 Pater est mort dans cette m^me pro- 
 vince du Maine, aprfes y avoir passe les 
 demiers terns de sa vie. Si, dans I'in- 
 tervalle, il y avoit des preuves d'un 
 domicile iix6 h, Paris, la circonstance de 
 I'habitation dans les demiers terns, et 
 de la mort dans le domicile d'origine, 
 suffiroit pour prouver un esprit de re- 
 tour k ce domicile, et pour effacer les 
 preuves oontraires qui s'elfeveroient dans 
 les tems interniddiarcs. La nature 
 ^clateroit dans ses derniferes d-marches ; 
 et ses op&ations sont si vives que la loi 
 ne balanceroit pas un moment k en re- 
 connoitre toute I'autorit^." 
 
 ' The Dutch jurist DeWitt, however, 
 
 532 
 
 held, in Van Leeuwen's case (Hol- 
 landsche Consultatien, vol. v. p. 309 ; 
 Henry, For. Law, p. 200 et seq.), that 
 the burial at Utrecht of one whose dom- 
 icil of origin was there, but who had 
 resided ten years at Amsterdam for the 
 purpose of trade, was evidence that he 
 had retained his domicil of origin at 
 the time of his death. Henry, in a 
 note, remarks that the burial at Utrecht 
 was "most probably by his direction, 
 but this does not appear in the case." 
 
 2 Piatt V. Attorney-General, L. E. 
 3 App. Cas. 336 ; Attorney-Genei-al v. 
 De Wahlstatt, 3 Hurl. & Colt. 374; 
 Hood's Estate, 21 Pa. St. 106 ; and see 
 infra, Hodgson v. De Beauchesne, 12 
 Moore P. C. C. 285, and Lord Camp- 
 bell, in Johnstone v. Beattie, 10 CI. & 
 Fin. 42, 139. 
 
 ' Hood's Estate, supra. Lord Camp- 
 bell, in Johnstone v. Beattie {supra), 
 said : "If, instead of remaining in Al- 
 bion Street, Hyde Park, she had gone 
 for her health to the island of Madeira, 
 where her husband died, and had writ- 
 ten letters stating that she should die 
 there, and had given directions that she 
 should be buried there, although she 
 had died and been buried there, un- 
 questionably her Scotch domicil never 
 would have been superseded." 
 
§ 428.] PLACE OF DEATH AND BURIAL. [CHAP. XXV. 
 
 country, and the execution of that wish by his executor after 
 his death in France, whither he had gone for medical aid, 
 cannot change the state of the case as it actually existed in 
 his lifetime. A residence is established by acts and inten- 
 tions while the body and soul are united. When they are 
 separated, the question of domicil is at an end. No disposi- 
 tion of the inanimate corpse can affect it. Graves and sepul- 
 chres are resting-places for the dead, not dwelling-houses for 
 the living." 
 
 In Bremer v. Freeman,* the Privy Council considered the 
 declarations of an English woman who had resided fifteen 
 years in France, that " she would never return to England, 
 and that she wished to be buried near her sister in the Ceme- 
 tery Pfere la Chaise," as, among others, strong circumstances 
 to show her acquisition of a French domicil. But what 
 weight would have been given to her desire to be buried in 
 France if it had not been coupled with the declaration of her 
 intention never to return to England, or with the other cir- 
 cumstances relied upon as strong in the case, does not appear. 
 In the very similar case of Attorney-Greneral v. De Wahlstatt," 
 a contrary view was taken by the Court of Exchequer. 
 
 § 428. Purchase of Burial-place. Haldane v. Eckford. — The 
 purchase by a person of a burial-place for himself and family 
 has, under some circumstances, been considered strong evi- 
 dence of domicil.i In Haldane v. Eckford,^ a Scotchman 
 who had spent thirty-three years in India in the Company's 
 service, subsequently, after a brief residence in France, set- 
 tled with his family in the island of Jersey, where he re- 
 sided for twenty-five years. He purchased ground and built 
 a vault in a burial-ground in Jersey, and removed to it 
 the bodies of two of his children who had been buried in 
 
 * 10 Moore P. C. C. 306. For the i Haldane v. Eokford, L. E. 8 Eq. 
 
 facts of this ease, see supra, §§ 351, Cas. 631 ; Succession of Franklin, 7 
 
 398. La. An. 395. See Heath v. Sampson, 
 
 ' Supra. It is proper, however, to 14 Bear. 441 ; and Brunei v. Branel, 
 
 say that this case was decided under L. R. 12 Eq. Caa. 298. In the latter 
 
 the influence of the extreme expressions two cases this fact is not mentioned by 
 
 as to change of domicil used in "Whicker the court as influencing the decision , 
 
 V. Hume, and Moorhouse v. Lord. See but it doubtless had its weight. 
 
 supra, §§ 145, 148. ' Supra. 
 
 533 
 
S 429.] THE LAW OP DOMICIL. [CHAP. XXV. 
 
 France during his residence there. Upon this last circum- 
 stance James, V. C, dwelt strongly in pronouncing judg- 
 ment in favor of domicil in Jersey. He said: "Add to 
 that the very important fact of his bringing the remains of 
 his children from a cemetery in France to be buried in Jer- 
 sey. I think that is by no means the immaterial fact as it 
 was pressed, upon me that it was by counsel for the respon- 
 dents. I can conceive nothing which indicates so completely 
 an intention to make a permanent residence as the selection 
 of a burial-place for his children, to whom he was attached, 
 and who were actually already buried elsewhere. I do not 
 think that the force of that fact, and the inference I should 
 draw from it of his intention to make that his permanent 
 residence, is in any way diminished by the consideration that 
 the immediate cause of the removal was his fear that the 
 remains, or the burial-place in France, where they were 
 placed, might be desecrated. He would not have removed 
 them to Jersey, unless he were satisfied as to Jersey being 
 their permanent resting-place, and the place in which he him- 
 self expressed his wish to be buried." 
 
 § 429. Id. Succession of Franklin. — In a Louisiana case,^ 
 one whose domicil of origin was in that State, and where he 
 acquired immense estates, engaged in business in Tennessee, 
 purchased land there and erected upon it a costly house, 
 
 1 Succession of Franklin, 7 La. An. was a beautiful superstition, and even 
 
 395. Rost, J. , upon this point, said : Christians may hope, without sin, that 
 
 " In that will he also ordered his execu- they will he permitted in another life to 
 
 tors to consecrate at least one acre of watch over and protect their offspring, 
 
 ground on the Fairview Estate to the The reason of the civil law, which made 
 
 erection of an expensive family vault, the presence of the lar indicative of 
 
 in which his remains, those of his wife the place of domicil, has survived the 
 
 and children, and of such other mem- superstition that gave it birth. The 
 
 hers of his family as might choose to be place selected by the testator, in this 
 
 entombed there might be deposited, and case, for the final resting-place of him- 
 
 requested them, if he should die at any self and his family was, I cannot doubt, 
 
 other place, to have his remains removed the home of his choice ; the place where 
 
 there without unnecessary delay. I his spirit dwelt during life, and whence, 
 
 take this disposition to be strong evi- in the language of the Roman Code, he 
 
 dence ngainst Mrs. Aoklen. The belief had no desire to depart, unless com- 
 
 of the Romans that the souls of the de- pelled by business, and was a wanderer 
 
 parted abidedneartheir earthly remains, when he left it, but ceased to be so 
 
 and under the name of lares were the when he returned to it." 
 guardian spirits of their descendants, 
 
 534 
 
§ 430.] PLACE OP DEATH AND BURIAL. [CHAP. XXV. 
 
 which was shown to be the finest country residence in that 
 State. He furnished it sumptuously, and adorned the grounds 
 surrounding it at great expense. He thenceforth resided there 
 about five months in the year. Upon his Louisiana estate lie 
 resided but little, the house which he occupied when there 
 being old and out of repair. The balance of the year he 
 spent in New Orleans, mostly in a rented house. His decla- 
 rations were conflicting, and his veracity doubtful. He made 
 the judicial declaration of domicil in Louisiana provided for 
 by the Code of that State, but on the other hand brought 
 suits in the Federal courts as a citizen of Tennessee. He 
 voted in both States. In his will he directed his executors to 
 provide a burial-place in Tennessee for himself and family. 
 And upon this last circumstance, in the great conflict of evi- 
 dence, the court relied greatly in holding his domicil to be, in 
 Tennessee. 
 
 § 430. Id. Hodgson v. De Beauchesne. — Upon the other 
 hand, we have the case of Hodgson v. De Beauchesne,^ where 
 the testator, whose domicil of origin was English, and who was 
 an ofiicer in the East India Company's service and a general 
 in that of her Majesty, after a service of thirty years in India 
 went to Prance and there resided with his family for twenty- 
 three years, — until his death. Upon the death of his wife 
 he purchased a burial-place there, and had inscribed upon it 
 " Famille Hodgson." He never obtained authorization to be- 
 come domiciled in France; and without stating them in detail, 
 it may be said that the circumstances tending to show an 
 English domicil were indeed strong. The Privy Council so 
 held, and in discussing the effect of the purchase of the burial- 
 place, Dr. Lushington, in delivering the opinion, said : " It is 
 expedient to examine into the circumstances attendant on the 
 purchase of this burial-ground with some particularity. First, 
 as to the time of the purchase. This is not immaterial. Gen- 
 eral Hodgson did not, as many persons do, prepare a burial- 
 
 1 12 Moore P. C._ C. 285. In Cap- erected upon it a costly house, the 
 
 devielle v. Capdevielle, 21 L. T. (n. s. ) turial of his wife there was given little 
 
 660, the case of a Frenchman who re- weight, his French domicil of origin 
 
 sided twenty years in business in Eng- being held to continue. 
 
 land, purchased real estate there and 
 
 535 
 
§ 431.] THE LAW OF DOMICIL. [CHAP. XXT. 
 
 place for himself in anticipation of his own decease, and of 
 his death in the vicinity of that spot ; he bought that burial- 
 ground in consequence of the exigency of the moment, upon 
 the death of his first wife, and not before, and when it became 
 imperatively necessary that he should prepare a proper place 
 for her interment. In order to attain that end, and to pre- 
 vent the operation of the French law, -;— that fresh interments 
 might take place after five years on ground not purchased, — 
 he was compelled to make a purchase of a certain extent of 
 burial-ground. This he did ; but he limited his purchase to 
 two metres, the smallest extent allowed by law to be bought 
 for the purpose sought to be attained. Looking at the cir- 
 cumstances under which the ground was purchased, and to 
 the necessity of the purchase for the decent interment of his 
 wife, we cannot consider this fact, standing alone, as any 
 cogent evidence of an intention to acquire a French domicil 
 by showing a determination to live and die in France. In- 
 deed, the extent of the ground bought, and that it would be 
 capacious enough to hold other bodies, is no proof of an inten- 
 tion to be buried there himself. It was a necessary effect of 
 any purchase at all ; a consequence necessarily flowing from 
 the attainment of the object, the acquisition of a fit place for 
 the interment of his wife ; and the obtaining this extra room 
 was compulsory, not voluntary, on the part of the testator. 
 It is true that tlie General caused or permitted an inscription 
 to be placed on the ground. That inscription was 'Famille 
 Hodgson.' This it appears from the evidence was a mere 
 matter of form, usually incidental to all such purchases." 
 
 § 431. Sale of Burial-place. — The sale of a burial-place at 
 the place of one's domicil of origin, acompanied by removal 
 elsewhere, is a fact of some importance showing animus non 
 revertendi.^ 
 
 1 Stevenson v. Masson, L. R. 17 Eq. Gas. 78. 
 536 
 
§ 433.] VOTING, PAYMENT OP TAXES, ETC. [CHAP. XXVI. 
 
 CHAPTER XXVI. 
 
 CRITERIA 0¥ DOMICIL (^continued'), — PUBLIC ACTS: NATURALIZA- 
 TION, VOTING, PAYMENT OF TAXES, HOLDING OFFICE, ETC. 
 
 § 432. Naturalization. — We have already seen that a change 
 of nationality is not necessary for the accomplishment Of a 
 change of national domicil,^ but, on the contrary, in modern 
 law a change of domicil is generally a condition precedent to 
 a change of national citizenship. For usually sovereign States 
 will not admit to citizenship aliens who are not permanently 
 established, that is to say, domiciled, within their territories. 
 Thus, under the Act of Congress of 14th April, 1802, it is pro- 
 vided 2 that " The court admitting such alien shall be satisfied 
 that he has resided within the United States five years at 
 least, and within the State or Territory where such court is 
 at the time held one year at least ; " and residence here is con- 
 strued to mean domicil.^ So in France, by the law of 29th 
 June, 1867, " The foreigner who, after having arrived at the 
 age of twenty-one years, has obtained authorization to estab- 
 lish his domicil in France and has there resided three years, 
 may be admitted to enjoy all the rights of a French citizen." 
 
 Moreover, in the ordinary case, what stronger evidence can 
 we have of the intention of a person permanently to reside in 
 a country than the fact that he has sought for and obtained 
 an act of the government of that country conferring upon 
 him the rights and subjecting him to the duties of a native, 
 and therefore incorporating him into the body of its citizens ? 
 
 § 433. Id. Continental Jurists. — For these reasons natural- 
 ization when accompanied by actual residence has long been 
 considered as evidence of domicil. Mascardus ^ lays it down : 
 " Prffiterea mutare, et constituere domicilium, in ea urbe is 
 
 1 Supra, § 144 e* seq. » Matter of Scott, 1 Daly, 534 ; Mat- 
 
 2 § 1, vol. ii. p. 153 ; Rev. Stats, ter of Bye, 2 id. 525. See supra, § 27. 
 § 2165. ^ De Probat. eoncl. 635, no. 4. 
 
 537 
 
§ 434.] THE LAW OP DOMICIL. [CHAP. XXVI. 
 
 pra3sumitur, qui privilegium impetravit, quo jus civitatis pete- 
 bat ; " and Corvinus, in an opinion cited by Henry from the 
 HoUandsche Consultatien, mentions as one of various modes 
 of proving a change of domicil, " Si privilegium impetravit, 
 quo jus civitatis petebat." ^ Other Civilians insist strongly 
 upon proof of actual residence, in addition to the acquisition 
 of citizenship, inasmuch as formerly citizenship was frequently 
 conferred upon non-residents. Zangerus ^ says : " Quinta con- 
 jectura contracti domicilii ducitur ex eo, quod quis in aliqua 
 civitate jus civitatis, quod nos vulgo vocamus das Biirgerrecht 
 impetrarit et ibidem habitaverit. Sola enim ilia impetratio 
 juris civitatis, domicilium ibidem contractum esse non argult, 
 cum etiam civis sine domicilio esse possit." And Lauter- 
 bach,* in his work on Domicil, says : " Dictse expressae declara- 
 tioni domicilii constituendi equipoUet ilia, si quis in civitate 
 aliquS, jus civitatis, das Burgerrecht, impetraverit et ibi habi- 
 taverit, vulgo da einer verbilrgerte oder Hrhschuldigung geleistet 
 hdusUch und bestandig gesessen ist. Requiritur autem copu- 
 lativfe, ut quis ibidem, non solum jus illud impetraverit, sed 
 etiam actualiter habitet." 
 
 § 434. Id. British and American Authorities. — In Stanley 
 V. Bernes,^ the testator, an Irishman by birth, had become a 
 naturalized subject of Portugal, and there resided for many 
 years ; and in the opinion of Westlake, naturalization was 
 probably the circumstance which chiefly outweighed the evi- 
 dence of an intention to return to his native country. In 
 Hood's Estate,^ the testator, whose domicil of origin was in 
 Pennsylvania, went to Cuba, and there resided for many years, 
 purchasing and cultivating land, embracing the Catholic re- 
 ligion, and taking out letters of naturalization ; the latter facts 
 were strongly relied upon for holding him to be domiciled in 
 Cuba. Lewis, J., who delivered the opinion of the Supreme 
 Court of Pennsylvania, remarking: " The will contains a par- 
 ticular and carefully worded recital of his profession of the 
 faith so indispensable to the security of his rights, and is 
 equally particular in declaring that he is ' authoi-ized to dis- 
 
 2 Henry, For. Law, p. 192. l 3 Hagg. Eccl. 373. 
 
 = De Except, pt. 2, c. 1, no. 54. 2 21 Pa. St. 106. 
 
 * De Domicilio, no. 30. 
 
 538 
 
§ 434.J VOTING, PAYMENT OP TAXES, ETC. [OHAP. XXVI. 
 
 pose freely of his property, hy virtue of the letters of natural- 
 ization which he has obtained from the Crovernment.' These 
 solemn professions of his religious faith and of his political 
 allegiance are acts of a character too decisive to be repelled 
 by slight evidence. There is nothing whatever to justify the 
 belief that these professions were falsehoods, designed only 
 to defraud the Spanish Government, and to evade its laws. 
 But if this were the case, it would be contrary to that elevated 
 rule of morality which regulates the conduct of civilized na- 
 tions, for a State to claim the advantages of a fraud perpetrated 
 by one of her own citizens upon a friendly nation. The tes- 
 tator derived great advantages from his domicil in Cuba and 
 the profession of his allegiance to Spain. By means of that 
 profession he had the opportunity of amassing his fortune, 
 and the privilege of disposing of it by will. All who claim 
 benefits derived from his acquisitions in Cuba are bound to 
 treat his professions as true. The validity of the will, and 
 the rights of the legatees under it, depend upon the existence 
 of his domicil in Cuba. We have no doubt of its existence 
 there in good faith." 
 
 In Drevon v. Drevon,^ the case of a Frenchman resident in 
 
 • 34 L. J. Ch. 129, 136. The Vice- case in which that circumatance occurred. 
 Chancellor said : " Now we come to a He did not obtain letters of naturaliza- 
 circumstance . . . which, I must say, ap- tion, — he never became naturalized ; 
 pears to me to be entitled to great weight but the question which I have to deter- 
 in the consideration of the question. It mine is, What was bis design and inten- 
 is this : in May, 1848, the testator con- tion ? What was his view ? Did he 
 suited his solicitor, Mr. Walters, who desire to abandon France, and cease to 
 deposes to all that passed on that ocea- be a Frenchman and become an English- 
 sion, as to his obtaining letters of natu- man ? Now, that circumstance appears 
 ralization, or whatever would constitute to me to be a circumstance of very great 
 the naturalization of a foreigner or alien, weight indeed as indicating intention. 
 Now, a Frenchman coming to this coun- Not only did he on that occasion, in 
 try, and residing here for a great number May, 1848, consult Mr. Walters upon the 
 of years, carrying on business here ex- subject, but he spoke to Mr. Fynn, his 
 clusively, and having no home in France brother-in-law, about it. Mr. Fynn 
 at all or in any other part of the world, states : ' He repeatedly expressed to me 
 and actually entertaining the idea and his intention to make England his per- 
 intention so strongly as to become a manent abode, and he never expressed 
 naturalized Englishman, — it appears to to me, or in my hearing or to my knowl- 
 me to be a circnmstance of great weight, edge, any desire or intention to return 
 and is indicative of as strong an inten- to and remain in France ; but, on the 
 tion on the subject as you could well contrary, I say that he on several occa- 
 have in any case. I have not found any sions during the latter part of his life 
 
 539 
 
§ 436.J 
 
 THE LAW OP DOMICIL. 
 
 [chap. XXVI. 
 
 England, Kindersley, V. C, relied, for holding his domicil to 
 be English, upon the fact that he had consulted his solicitor 
 with reference to obtaining letters of naturalization, and had 
 stated to others his desire and intention to become naturalized, 
 as particularly important, although he never obtained such 
 letters. The Vice-Chancellor said : " That intention and de- 
 sire on the part of the testator to acquire naturalization in this 
 country ... is a fact of the greatest possible importance in 
 coming to a conclusion upon the question; and it is a fact 
 which would require very strong evidence of acts on the other 
 side to outweigh it." 
 
 In Ennis v. Smith,* the Supreme Court of the United States, 
 in determining the domicil of Kosciusko to be French, relied, 
 inter alia, upon the fact that he had been made a French citi- 
 zen by a decree of the National Assembly. 
 
 § 435. Voting. — We have seen that in the United States 
 the right of suffrage depends upon residence, and that, as used 
 
 spoke to me upon his desire and inten- 
 tion to obtain letters of naturalization 
 in this country, of the mode of obtain- 
 ing ■which he was ignorant ; and he 
 several times told me he should go and 
 see about it, but postponed so doing on 
 account of his engagements in his busi- 
 ness, in which, as is usual with silk-dyers, 
 he himself actively assisted ; and I verily 
 believe he was only prevented applying 
 for such letters of naturalization by the 
 sudden illness which terminated in his 
 death.' Furthermore, he spoke to 
 Cayzer in such a manner as to lead 
 Cayzer to suppose that lie had actually 
 obtained letters of naturalization, and 
 had become naturalized ; and he also 
 told Flint that he considered he was a 
 naturalized Englishman ; that he had 
 settled and intended to remain in this 
 country, and had mamed an English 
 ■woman, and he fully considered himself 
 to have been and beoomenaturalized here. 
 I refer to those, because, although there 
 is evidence of conversations and expres- 
 sions and declarations, they are some- 
 thing more than the mere vague general 
 declarations of an intention to remain 
 here or to go back. Taking the evidence 
 540 
 
 of Mr. Walters, Mr. Fynn, Mr, Cayzer, 
 and Mr. Flint, it is evident to my mind 
 that although the testator, partly because 
 he was so much occupied that he could 
 not give his attention sufficiently to the 
 matter, and, probably, partly with refer- 
 ence to the question of expense, — for, 
 I believe, there is some considerable ex- 
 pense attending natumlization, — never 
 did become naturalized ; yet the testator 
 had it clearly in his mind to do the act 
 which would constitute him an English- 
 man, although he never did it ; and the 
 question, of course, is, What was his 
 intention in residing here, and carrying 
 on his business here ? Was it his inten- 
 tion to become an Englishman and cease 
 to be a Frenchman ? Now, that inten- 
 tion and desire of the testator to acquire 
 naturalization in this country does, I 
 confess, appear to me, not only to be 
 clearly proved by Mr.Walters's evidence, 
 which, of course, is beyond all question, 
 but it is a fact of the greatest possible 
 importance in coming to a conclusion 
 upon the question ; and it is a fact which 
 would require very strong evidence of 
 acts on the other side to outweigh." 
 < 14 How. 400. 
 
§ 435.] 
 
 VOTING, PATMENT OF TAXES, ETC. [CHAP. XXVI. 
 
 in this connection, the term " residence " is generally construed 
 to mean domicil.i The act of voting at a place has, therefore, 
 usually and properly been received as important evidence of 
 domicil.2 It is at least evidence that the person exercising 
 such act considers himself to be there resident and domi- 
 ciled.* To assume the contrary would be to assume that he 
 has been guilty of a deliberate fraud upon the public and 
 a crime. His act may therefore be usually looked upon as a 
 deliberate declaration that he is domiciled at the place where 
 he casts his vote,* and has in some cases been considered 
 conclusive on the subject.* But not always; for while the 
 
 1 Supra, § 53 ; and iu addition to 
 cases there cited, State v. Aldrich, 14 
 R. I. 171, and State v. Griffey, 5 Neb. 
 161. 
 
 2 Shelton v. Tiffin, 6 How. 163 ; 
 Mitchell V. United States, 21 Wall. 350; 
 Blair o. Western Female Seminary, 1 
 Bond, 578 ; United States v. Thorpe, 2 
 id. 340; Woodworth v. St. Paul, &c. Ry. 
 Co., 18 Fed. R. 282 ; East Liyermore v. 
 Farmingtnn, 74 Me. 154 ; Hnlett v. 
 Hulett, 37 Vt. 581 ; Harvard College v. 
 Gore, 5 Pick. 370 ; Cabot v. Boston, 12 
 Cush. 52 ; Weld v. Boston, 126 Mass. 
 166 ; Easterly v. Goodwin, 35 Conn. 
 279 ; Fiske v. Chicago, etc. K. R. Co., 
 53 Barb. 472 ; State v. Ross, 3 Zab. 517 ; 
 Guier v. O'Daniel, 1 Binn. 349, note ; 
 Carey's Appeal, 75 Pa. St. 201 ; FoU- 
 weiler v. Lutz, 112 id. 107 ; Dauphin 
 County V. Banks, 1 Pears. 40 ; Com- 
 monwealth V. Emerson, id. 204 ; Smith 
 V. Croom, 7 Fla. 81 ; Yonkey v. State, 
 27 Ind. 236 ; Kellogg v. Oshkosh, 14 
 Wis. 623 ; State v. Groome, 10 Iowa 
 308 ; Venable v. Paulding, 19 Minn. 
 488 ; Hairston v. Hairston, 27 Miss. 
 704 ; Hill v. Spangenburg, 4 La. An. 
 553 ; McKowen v. McGuire, 15 id. 637; 
 Sanderson v. Ralston, 20 id. 312 ; State 
 V. Steele, 33 id. 910. 
 
 " Guier v. O'Daniel, supra ; Hill •». 
 Spangenburg, supra. 
 
 * In Hill V. Spangenburg, supra, it 
 is said ; " Voting in the parish of Jeffer- 
 son was his own deliberate act, clearly 
 implying a declaration that he resided 
 
 in that parish, and involving a fraud 
 upon the public if that declaration was 
 untrue." 
 
 ' Kellogg V. Oshkosh, sujira, and see 
 Shelton v. Tiffin. In the last-named 
 case it was said by McLean, J., in de- 
 livering the opinion of the court : " On 
 a cl ^ange of dnm^ir.il from one State to 
 another, citizenship may depend upon 
 the intention of the individual. But 
 this intention may be shown more satis- 
 factorily by acts than declarations. An 
 exercise of the right of suffrage is con- 
 clusive on the subject ; but acquiring a 
 right of suffrage, accompanied by acts 
 which show a permanent location, un- 
 explained may be sufficient." This 
 language is somewhat obscure, and it is 
 difficult to determine exactly what the 
 learned judge meant by it. It has been 
 understood by some as maintaining that 
 the exercise of the right of suffrage is 
 conclusive as to domicil. Such, however, 
 does not appear to have been his thought, 
 but rather that, assuming a change of 
 domicil from one State to another to 
 have taken place, something further is 
 necessary for a change of citizenship ; 
 to wit, intention to become a citizen of 
 the latter State. It may be objected 
 that this construction would bring the 
 view of Judge McLean into conflict with 
 the received, doctrine as to what con- 
 stitutes judicial citizenship (see supra, 
 § 48 ; and besides the cases there cited, 
 see Chicago & N. W. Ry. Co. v. Ohle, 
 117 U. S. 123) ; but, on the other hand, 
 
 541 
 
§ 435.J 
 
 THE LAW OP DOMICIL. 
 
 [chap. XXTI. 
 
 presumption is undoubtedly in favor of the innocence and 
 knowledge of the voter, his ballot may have been cast fraud- 
 ulently or through mistake of his legal rights; in either of 
 which events his act of voting could not be accepted as de- 
 terminative of his domicil.® 
 
 to assume that lie meant to say that 
 voting is, either always or as a general 
 rule, conclusive as to domicil, is to bring 
 him into conflict with a number of ad- 
 judged cases (see following note), as well 
 as to make him hold a doctrine which 
 is not tenable on rational grounds. It 
 may be added, however, that the lan- 
 guage of Judge McLean is wholly obiter, 
 inasmuch as he himself says in the same 
 opinion : " There is no proof that he 
 [the appellant, whose citizenship was in 
 question] has voted at any election in 
 Louisiana " (where he was held to have 
 acquired citizenship). The act of voting 
 may well be held in many cases conclu- 
 sive evidence against the voter, that his 
 domicil is at the place where he exercises 
 the right of suffrage, but the writer be- 
 lieves it has never been so held in his 
 favor 01', when standing by itself, against 
 the rights of a third person. In Kellogg 
 V. Oshkosh, Dixon, C. J., said : "He 
 says he came to Oshkosh in the spring 
 of 1855, and remained until Decem- 
 ber, 1856. He voted there in the fall of 
 1856, and a large share of his time has 
 since been spent there, the winter season 
 being passed at different places abroad on 
 account of his health ; most of his prop- 
 erty has been there and in that vicinity, 
 and that has been his principal, if not 
 his only, place of business, and he has 
 never removed or gone elsewhere with 
 the intention of remaining or exercising 
 the rights or privileges of a citizen in any 
 other place. This clearly made him a 
 resident of Oshkosh. The act of voting 
 was the highest evidence that he had 
 changed his domicil and made Oshkosh 
 his home in intent as well as in fact. 
 In some cases it is regarded as conclu- 
 sive on the subject." But here the evi- 
 dence was used against the voter. In 
 Dauphin County v. Banks, SKpra (a tax 
 case), Pearson, J., who, although he sat 
 
 542 
 
 in a court of inferior jurisdiction, won, 
 by a long and honorable service, a dis- 
 tinguished reputation as a learned and 
 accurate judge, said : " Had Mr. Banks 
 exercised the right of suffrage here, it 
 would have been a strong circumstance 
 to show that this was his place of resi- 
 dence ; in fact, he would probably have 
 been estopped from denying it, as the 
 Constitution requires a residence of ten 
 days in fhe district immediately pending 
 the election at which he offers to vote, 
 and a person has no right, under any cir- 
 cumstance, to vote in any district except 
 where he is resident at the time, and 
 has resided for ten days next preceding." 
 "Residence" was in this case used in 
 the sense of domicil. In Commonwealth 
 V. Emerson, where the defendant in a 
 writ de inebriato inquirendo raised the 
 question of the jurisdiction of the 
 County Court upon the ground of non- 
 residence, the same learned judge (after 
 stating the facts) said : " This state- 
 ment of facts we consider shows de- 
 cidedly that his residence was in Dauphin 
 County when the petition was pre- 
 sented. Voting at the election in Octo- 
 ber unequivocally shows his own opinion 
 and intention, as he could not lawfully 
 vote at any other place than where he 
 resided. We have no right to presume 
 that he committed a fraud, and he ia 
 estopped from averring it. Had the 
 proceeding been commenced in Perry 
 County, this same evidence (although 
 less conclusive for than against the 
 party) would have caused the proceed- 
 ings to be set aside." 
 
 •> Ellsworth o. Gouldsboro, 55 Me. 
 94 ; East Livermore v. Farmington, 74 
 id. 154 ; Lincoln v. Hapgood, 11 Mass. 
 350 ; Easterly v. Goodwin, 35 Conn. 
 279 ; Hayes v. Hayes, 74 111. 312 ; 
 Mandeville v. Huston, 15 La. An. 281 ; 
 Folger V. Slaughter, 19 id. 323 ; Villere 
 
§ 435.J VOTING, PAYMENT OP TAXES, ETC. [CHAP. XXVI. 
 
 It having been the practice in many towns in Massachusetts 
 to allow any citizen of the State, othei'wise qualified, to vote 
 in the election of governor, although not an inhabitant of the 
 town where he offers to vote, upon the theory that as that 
 officer presides over the whole State, every citizen ought to be 
 permitted to vote for him, although notoriously being in the 
 town without any intention of remaining there ; it was held,'^ 
 in the case of one who was born and always had resided in 
 the town of P., but who voted at a gubernatorial election in the 
 town of B., where he was temporarily employed at work for a 
 period of ten weeks, that such voting did not operate to change 
 his legal residence so as to deprive him of the right of voting 
 in the town of P. for representatives in the legislature. 
 
 Similar was the case of Clarke v. The Territory ,8 in which the 
 facts were that H., a citizen of Washington Territory, on the 
 breaking out of the Indian war, went to California, and there re- 
 mained for two years, always intending to return. He voted in 
 California for President of the United States, and the court 
 held, the question being as to his eligibility to serve on a jury in 
 Washington Territory, that little weight was to be given to 
 these circumstances ; Fitzhugh, J., remarking : " The circum- 
 stance which is claimed to have established his residence in 
 California is his voting there for President of the United States. 
 Had he voted for State officers, it would have had more weight ; 
 but voting for President only, it cannot be considered as estab- 
 lishing a residence in California, contrary to his oath that it 
 was his fixed intention to return, and that he considered his 
 home here in the Territory." But inasmuch as the appoint- 
 ment of presidential electors belongs as much to the several 
 States of the Union as the selection of their own governors 
 
 u. Butman, 23 id. 515; Clarke v. Ter- or the mistake may be that of the voter, 
 
 ritory, 1 Wash. Ter. 68. In East Liv- or of the officers of the town, or of both. 
 
 ermore v. Farmington (a settlement It is obvious that the fact of voting in 
 
 case), Appleton, C. J., used language the place is not, and cannot be, conclu- 
 
 which is applicable to all cases of dom- sive of the fact of residence. It is not 
 
 icil. He said : " The fact of voting in binding on the town contesting his set- 
 
 a town, while of iitiportance as bearing tlement. It is simply a fact, with the 
 
 on the question of settlement, is by no other facts in the case to be weighed by 
 
 means conclusive. The vote may be the jury." 
 
 without right and fraudulent. It may ' Lincoln ii. Hapgood, supra, 
 
 be through mistake on the part of the ' Supra. 
 voter as to his legal rights. The fraud 
 
 543 
 
§ 437.] THE LAW OP DOMICIL. [CHAP. XXVI. 
 
 or other. State officers, the only ground upon which the above 
 language seems tenable is, that bj reason of the national char- 
 acter of the presidential office, the citizen is more likely to be 
 mistaken as to his right of suffrage than in the case of elections 
 for State or local oflBcers. 
 
 Another example of mistake is furnished in Ellsworth v. 
 Gouldsboro,^ where it was held that a person does not acquire 
 a settlement in a town by voting and paying taxes there under 
 the erroneous belief that his dwelling-house is within the 
 limits of that town. 
 
 However, even though the fact of voting remained unex- 
 plained satisfactorily, it is but a circumstance which although 
 strong is usually liable to be overcome by other circumstances 
 which tend to contradict the inference apparently to be drawn 
 from it.i" 
 
 § 436. Offering to Vote. — Offering to vote at a place, al- 
 though the ballot be rejected by the election officers, is also 
 evidence of domicil there. This point was earlj' held in. the 
 case of Guier v. O'Daniel,^ in which Rush, President, said : 
 " It appears Guier was present at one election, and offered his 
 ticket, which, though not received, is a striking fact to. show 
 he considered himself in the light of a citizen. The ticket 
 not being received does not alter the nature of the transaction 
 on the part of Guier ; the evidence resulting from it, of inten^ 
 tion to settle and reside, is the same as if it had been actually 
 received." 
 
 § 487. Refusing to Vote. — Refusal to vote at a place on the 
 ground that the person is not domiciled there is doubtless 
 important evidence of such fact.i It certainly strongly re- 
 inforces a declaration of that fact, but it is not conclusive ; ^ 
 and, moreover, such refusal is of no consequence, if made after 
 the bringing of a suit in which the question of domicil is 
 raised.^ So also refusal to be registered as a voter is not 
 conclusive.* 
 
 " Supra. 2 Heirs of Holliman v. Peebles, m- 
 
 1" See cases cited in note 6, supra. pra. 
 
 1 1 Binn. 349, note. s Shelton v. Tiffin, 6 How. 163. 
 
 1 Heirsof Holliman I). Peebles, 1 Tex. < Hindman's Appeal, 85 Pa. St. 
 
 673 ; New Orleans v. Shepherd, 10 La. 466. 
 An. 268. 
 
 544 
 
§ 440.J VOTING, PAYMENT OP TAXES, ETC. [CHAP. XXVI. 
 
 § 438. Failure to Vote. — The mere omission to vote is ad- 
 missible as cumulative evidence,^ but its value must be appre- 
 ciated according to circumstances. Thus, in the case of a 
 seafaring man, the omission to vote at the place where other 
 circumstances tend to show him domiciled, is of little weight, 
 particularly when taken in connection with the fact that he 
 never voted elsewhere.^ 
 
 § 439. Absence of the Right to Vote. — The absence of the 
 right to vote does not necessarily indicate absence of domicil.^ 
 Under the American system, which requires residence for a 
 specified length of time as a condition precedent to the right 
 of suffrage, it is necessary that domicil should precede the 
 right to vote. Moreover, the right of suffrage depends upon 
 age, and generally upon citizenship and sex, and may also 
 depend upon property or other qualifications, apart from or 
 in addition to domicil. 
 
 § 440. Voting, etc. English Cases. — The Subject has been con- 
 sidered in England also. In De Bonneval v. De Bonneval,^ it 
 appeared, on the one hand, that the testator, who was French 
 by origin, had " exercised his political rights as a French sub- 
 ject," and, on the other, that during his residence in England 
 his name was included in the list of persons entitled to vote 
 at the election of members of parliament in the borough in 
 which he resided. Upon these facts, Sir Herbert Jenner re- 
 marked : " I am inclined to pay very little attention to the 
 statements as to his exercise of political rights in France, or 
 to his being registered as a voter here ; being a housekeeper, he 
 was registered here as a matter of course." It does not, how- 
 ever, appear what political rights he exercised in France. Dre- 
 von V. Drevon ^ was a case of an unnaturalized Frenchman, 
 
 1 Mooar v. Harvey, 128 Mass. 219 ; case is probably authority for nothing 
 
 Dauphin County v. Banks, 1 Pears. 40. more upon this point than that the 
 
 In Mooar v. Harvey, it was relied upon mere registration of a person as a voter 
 
 as a significant fact pointing to a change by the public officers is of little or no 
 
 of domicil. weight in defining his domicil, it not ap- 
 
 * HaUet V. Bassett, 100 Mass. 167 ; pearing that the registration was made 
 
 Guier v. O'Daniel, 1 Binn. 349, note. at his request, or that he availed himself 
 
 1 See Guier ». O'Daniel, SM^TTO, §436, of the privilege of suffrage thus ac- 
 
 and infra, § 443, note 1. corded him. 
 
 1 1 Curteis, 856. For the other facts ^ 34 l. J. Ch. 129. 
 of this case, see supra, § 281. The 
 
 35 545 
 
§ 442.] THE LAW OP DOMICIL. [CHAP. 
 
 XXVI. 
 
 long resident in England, who there voted for members of par- 
 liament. He appears to have voted but once. In holding his 
 domicil to be English, Kindersley, V. C, strongly relied upon 
 this fact, remarking : " It is true, in some of the cases it 
 is said that voting is not considered a matter of very great 
 weight — he may have voted; he was rated, and he voted 
 according to his rating. But we have the testator here exer- 
 cising the functions belonging to a citizen of England and 
 not belonging to an alien. I think that is a very important 
 fact." 
 
 § 441. Id. French Authorities. — In France, also, voting is 
 looked upon as evidence of domicil, although it has not as 
 much weight as with us ; inasmuch as a Frenchman may 
 transfer his " domicile politique " ( which is at best but a fig- 
 urative expression) to a place different from that in which he 
 has his " domicile r^el." The exercise of political rights at 
 a place is, however, considered as at least prima facie evidence 
 that the person is domiciled there.^ It has been decided that 
 inscription upon the electoral list does not of itself change the 
 domicil of a Frenchman.^ 
 
 § 442. Payment of Personal Taxes. — As personal taxes are 
 usually payable at the place of domicil, the payment of such 
 tax without resistance or protest is evidence of domicil.^ But 
 it is otherwise if the payment be made under protest,^ or 
 under a misapprehension as to residence,^ or if payment of 
 tax at a particular place be by law made to depend upon resi- 
 dence which is short of domicil.* So, too, if it appear that a 
 
 1 Demolombe, Cours de Code Napo- Cout. d'Orleans, no. 20 ; Denizart, verl. 
 leon, t. 1. no. 345 ; Ancelle, Dom. pp. Dom. no. 17 ; Merlin, Repertoire, verb. 
 98, 201 eise?.; Chavanes, Dom. pp. 113, Dom. § 7; Demolombe, Cours de Code 
 208 et seq. ; and see authorities cited by Napoleon, t. 1, no. 345 ; Sirey et Gil- 
 Slrey et Gilbert, Code Civil Annot^, art. bert, Code Civil Annot^ art. 102, note 
 102, note 4, and art. 103, note 19. 4-6, and art. 103, notes 17, 19, and au- 
 
 2 Sirey et Gilbert, art. 103, note 12. thorities cited. 
 
 1 Mitchell V. United States, 21 Wall. = Isham v. Gibbons, 1 Bradf. 69. 
 
 350 ; Hulett v. Hulett, 37 Vt. 581 ; " Ellsworth v. Gouldsboro, 55 Me. 
 
 Cambridge v. Charlestown, 13 Mass. 94. In this case a person paid taxes in 
 
 501 ; Harvard College v. Gore, 5 Pick, a town under the erroneous belief that 
 
 370 ; Weld v. Boston, 126 Mass. 166 ; his dwelling-house was located within 
 
 Carey 's Appeal, 75 Pa. St. 201 ; Yon- its limits. See also McKowen v. Mc- 
 
 key V. State, 27 Ind. 236 ; State v. Guire, 15 La. An. 637. 
 Steele, 33 La. An. 910 ; Wharton, « Dale v. Irwin, 78 111. 160. 
 
 Confl. of L. § 65 ; Pothier, Intr. aux 
 
 546 
 
§ 443. j VOTING, PAYMENT OP TAXES, ETC. [CHAP. XXVI. 
 
 person elects to be taxed in one place rather than another for 
 the purpose of escaping a heavier burden, or for similar reasons, 
 such payment would not only not be conclusive upon the ques- 
 tion of domicil, but might be held to have little or no effect.^ 
 Said Shaw, Chief Justice, in Lyman v. Fiske : " The election 
 of a man to pay taxes in one town rather than another may 
 be a good motive and a justifiable reason for changing his 
 habitancy ; and if such election is followed up by correspond- 
 ing acts, by which he ceases to be an inhabitant of the one 
 and becomes an inhabitant of the other, his object may be 
 legally accomplished. But such an election to be taxed in 
 one town rather than another is only one circumstance bearing 
 upon the question of actual habitancy, and to be taken in con- 
 nection with the other circumstances, to determine the prin- 
 cipal fact." A tax-list bearing the name of a person, with a 
 memorandum of " paid " against it, is not evidence of domicil.® 
 § 443. Omission or Refusal to pay Taxes. — On the other 
 hand, the mere non-payment of taxes at the place of alleged 
 domicil is usually of little weight against it,i particularly if it 
 
 6 Lyman v. Fiske, 17 Pick. 231. 
 
 6 Sewall V. Sewall, 122 Mass. 156. 
 
 1 De Bonneval v. De Bonneval, 1 
 Curteis, 856 ; Hallet v. Bassett, 100 
 Mass. 167 ; Guier v. O'Daniel, 1 Binn. 
 349, note. In De Bonneval v. De Bon- 
 neval, Sir Hertert .Tenner said : " It is 
 stated that he resisted with success the 
 contribution to some of the French 
 rates, which a person resident in France 
 was liable to ; but the grounds are not 
 stated, and it is too loose a reasoning 
 that because all French subjects are lia- 
 ble to such rates, and he successfully 
 resisted, them, therefore he was not dom- 
 iciled in France. It must be shown that 
 the question came regularly before the 
 French tribunals, and he was held to be 
 not a domiciled subject of France." In 
 the case of the Marquis of Saint-Pater 
 it was argued that the imposition of 
 personal tax at Paris was evidence that 
 he was there domiciled ; but Cochin 
 (OEuvres, t. 6, p. 266 et seq.) turns this 
 point the other way by showing that he 
 nevei; paid it. The petition, however, 
 
 of the Marquis to the King for relief 
 from payment was based upon the fact 
 that he was not domiciled at Paris. 
 This circumstance, therefore, met the 
 objection made by Sir Herbert Jenner. 
 In Guier v. O'Daniel, Eush, President, 
 remarked : "It is, I think, extremely 
 doubtful whether voting and paying 
 taxes are in any case necessary to con- 
 stitute a domicil, which, being a ques- 
 tion of general law, cannot depend on 
 the municipal regulations of any State 
 or nation. Voting is coniined to a few 
 countries, and taxes may not always be 
 demanded. Guier was a seafaring man, 
 and one of the witnesses says that be- 
 tween the 14th January, 1800, and the 
 15th October, 1801, he sailed six or 
 seven times. Is it any wonder a single 
 man thus engaged in trade should escape 
 taxation ? It frequently happens that 
 young men who never go abroad are 
 not discovered to be objects of taxation 
 till they have reached the age of five or 
 six and twenty. If Guier escaped tax- 
 ation through the neglect of the oifi- 
 
 547 
 
§ 444.J THE LAW OF DOMICIL. [CHAP. XSVI. 
 
 appear that they were not paid elsewhere. The failure may 
 be through lack of vigilance on the part of the public officers 
 or (for example, in the case of a mariner) by reason of the 
 frequent and prolonged absence of the person whose domicil 
 is in dispute. But in Mooar v. Harvey ,2 the case of a Massa- 
 chusetts man who resided in Washington for fifteen years in 
 government employ, the Supreme Court of Massachusetts held 
 his failure to vote or pay taxes at the place of his former 
 domicil in that State a significant fact pointing to a change 
 of domicil. 
 
 In Hindman's Appeal,^ the decedent's domicil of origin was 
 in West Virginia, whence he removed to Pennsylvania. After 
 coming into the latter State he refused to be either assessed 
 or registered, and declared his intention of never paying any tax 
 there. But this was held to be of no importance, inasmuch as 
 after his removal he was not assessed and paid no tax in West 
 Virginia, and moreover declared his intention never to do so. 
 
 § 444. Holding Office an Important Criterion, but not Con- 
 clusive. — The holding of a local office is also an important 
 criterion} In Drevon v. Drevon, Kindersley, V. C, held that 
 the fact that a Frenchman served in the office of head-borough 
 in an English borough was an important fact tending to show 
 his domicil in England, although not so important as voting. 
 In Maxwell v. McClure, the fact that a Scotchman who was 
 long resident and engaged in business in England, and who 
 subsequently returned to Scotland, had become a town coun- 
 cillor and magistrate of an English borough, and after his 
 return still retained those offices, was relied upon in the House 
 of Lords as a circumstance to negative reverter. 
 
 But the holding of a local office is by no means conclusive. 
 Thus it was held, in Butler v. Hopper,^ that election to the 
 legislature of a State does not fix domicil there in the face 
 of clearly contradicting proof of animus manendi elsewhere. 
 Still less does mere candidacy for such office.^ 
 
 cers of government, it is impossible to 407 ; Drevon v. Drevon, 34 L. J. Ch. 
 
 conceive how their neglect can have any 129 ; Harvard College v. Gore, 5 Pick, 
 
 effect on the question of domicil." 370 ; Cole v. Cheshire, 1 Gray, 441. 
 
 2 128 Mass. 219. 2 1 Wash. C. Ct. 499. 
 
 » 85 Pa. St. 466. 8 Mandeville v. Huston, 15 La. An. 
 
 1 Maxwell v. McClnre, 6 Jur. (n. 8.) 281. 
 648 
 
§ 447.] VOTING, PAYMENT OP TAXES, ETC. [CHAP. XXVI. 
 
 Moreover, absence of a right to hold office does not neces- 
 sarily indicate absence of domicil,* for substantially the same 
 reasons as those given above with respect to absence of the 
 right to vote. 
 
 § 445. Treatment by Public Officers. — The treatment of a 
 person by public officers, for example, the assessment of taxes 
 against him, placing his name on the voting-list or neglect 
 or refusal to do either of these acts, etc., has no bearing 
 upon the question of his domicil, unless it be shown that the 
 act was done or omission made at his request or by his 
 consent.^ 
 
 § 446. Jury Service. — Service upon juries was relied upon 
 in a Louisiana case ^ as strong evidence of domicil, the court 
 remarking that it was an " important public and notorious 
 act of citizenship, implying a residence" where it was per- 
 formed. Its value, however, may be greatly diminished by 
 circumstances ; as, for instance, where one travels back and 
 forth between a new place of abode and his former place of 
 abode, service on a jury at the latter place does not necessarily 
 imply a retention of his former domicil.^ 
 
 § 447. Militia Service. — We have seen that service in the 
 army or navy of a sovereign State is evidence of national 
 domicil, although how far it is to be considered conclusive is 
 not settled.^ Probably service in the local militia, at least 
 where liability to such service depends upon domicil, would 
 be evidence of ^wasi-national or municipal domicil. It is so 
 held in France.^ 
 
 * Burnham v. Bangeley, 1 Woodb. & fact of service of the notices may dis- 
 
 M. 7. tinguish tHs case from the later Massa- 
 
 1 Mead v. Boxborough, 11 Cush. chusetts cases ; if not, it is overruled 
 
 362 ; Fisk v. Chester, 8 Gray, 506 ; by them. 
 
 Sewall V. Sewall, 122 Mass. 156. But l Sanderson v. Ralston, 20 La. An. 
 
 see West Boylstou v. Sterling, 17 Pict. 312. But it is not conclusive. Villere 
 
 126, where written notices to the person v. Butman, 23 id. 515. 
 whose domicil was in question to attend 2 state v. Groome, 10 Iowa, 308. 
 school-district meetings in a town where i Supra, §§ 299, 300. 
 he was alleged to have been domiciled ^ Demolombe, Cours de Code Napo- 
 
 were held to be competent evidence, it leon, t. 1, no. 345 ; Sirey et Gilbert, 
 
 having been proved that the notices Code Civil Annot^, art. 102, note i, and 
 
 were delivered to him. Possibly the authorities cited. 
 
 549 
 
§ 448.] THE LAW OP DOMICIL. [CHAP. XXVI. 
 
 § 448. Taking Part in Town Meetings. — Attending town 
 meetin'gs and taking part in the discussions there, is compe- 
 tent evidence of domicil,^ but not so the discussion in a private 
 conversation of the affairs of a town by a person who has one 
 of his several residences there, particularly if offered in his 
 own favor .2 
 
 1 Weld V. Boston, 126 Mass. 166. 2 Id. 
 
 650 
 
§ 451.J DECLARATIONS, ORAL AND WRITTEN. [CHAP. XXVII. 
 
 CHAPTER XXVII. 
 
 CRITERIA OP DOMICIL (continued'), — DECLARATIONS, ORAL AND 
 WRITTEN ; TESTIMONY OF PERSON WHOSE DOMICIL IS IN QUES- 
 TION AS TO HIS INTENTION. 
 
 § 449. General Remarks. — The declarations, both oral and 
 written, of the person whose domicil is in question are fre- 
 quently resorted to for the purpose of discovering his inten- 
 tion. "When he is himself a party to the controversy, it is 
 scarcely necessary to observe, his declarations, when volun- 
 tarily made, are always admissible in evidence against him.^ 
 How far they are admissible in his favor or in controversies 
 between strangers needs to be stated so.mewhat at large. 
 
 § 450. Formal Declarations of Domicil. — The French Code 
 Civil,! and others ^ modelled after it, provide for the proof of 
 intention to change domicil by express and formal declara- 
 tions made at the place from which and the place to which 
 the change is to be made. But while such declarations, when 
 made, are entitled to very great weight in determining the 
 iutention, on the one hand, they are not conclusive,^ nor, on 
 the other, are they absolutely necessary for a change, it being 
 expressly provided that in default of such formal declarations 
 proof of intention shall depend upon other circumstances.* 
 
 § 451. Declarations accompanying and explanatory of Acts 
 admissible as a Part of the Res Gestae. — As a general rule it 
 
 1 Especially if other persons have ' Waller v. Lea, 8 La. E. 213 ; Nel- 
 
 been misled by them. Commercial Bank son v. Botts, 16 id. 596; Judson v. 
 
 V. King, 3 Rob. (La.) 243. La^hrop, 1 La. An. 78 ; Succession of 
 
 1 Art. 104. " La preuve de I'inten- Franklin, 7 id. 395 ; Yerkes v. Brown, 
 
 tion resulterad'une declaration expresse, 10 id. 94 ; Sirey et Gilbert, Code Civil 
 
 fait tant k la municipality du lieu qu' on Annote, art. 103-105, notes 3-8, and 
 
 quittera, qu'k celle du lieu ou aura authorities cited, 
 transfere son domicile." * French Code Civil, art. 105 ; Sar- 
 
 '■' E. g., Sardinian Code (Codice Ci- dinian Codice Civile, art. 69 ; Louisi- 
 
 vile), t. 3, art. 68; Louisiana Civil Code, ana Civil Code, art. 42 {Rev. Civil 
 
 t. 2, art. 44 (Kev. CivU Code, art. Code, art. 44) ; Evans v. Payne, 30 La. 
 
 44). An. 498. 
 
 651 
 
451.J 
 
 THE LAW OF DOMICIL. 
 
 [chap. XXVII. 
 
 may be laid down that declarations accompanying and giving 
 character to any act are admissible in evidence whenever the 
 act itself is admissible, upon the principle that they constitute 
 a part of the res c/esta? Declarations accompanying and ex- 
 plaining any act tending to throw light upon the intention of 
 the person whose domicil is in question may therefore be given 
 in evidence ; ^ and inasmuch as hardly any act of a man's life, 
 as we have already seen, is too trivial to be of some account in 
 determining the question of his domicil, perhaps even greater 
 latitude in the admission of declarations is allowed in cases of 
 domicil than in other cases.^ 
 
 1 Bateman v. Bailey, 5 T. E. 512 ; 
 Eawson v. Haigh, 2 Bing. 99 ; Stans- 
 buiy V. Arkwright, 5 C. & P. 672 ; 
 Haynes v. Eutter, 24 Pick. 2i2 ; Salem 
 V. Lynn, 13 Met. 544 ; Lund v. Tyngs- 
 liorough, 9 Cush. 36; Cole v. Cheshire, 
 1 Gray, 441 ; Moiison v. Palmer, 8 Al- 
 len, 551 ; Wright v. Boston, 126 Mass. 
 161 ; Brookfield v. Warren, id. 287 ; 
 Cherry v. Slade, 2 Hawks. 400 ; Grif- 
 fin V. Wall, 32 Ala. 149 ; 1 Greenl. Ev. 
 § 108 ; 1 Starkie Ev. § 28 ; 1 Whart. 
 Ev. § 258 et seq., and authorities cited. 
 See also the cases cited in next note, 
 and see particularly the discussion of 
 the subject of declarations as part of 
 the res gestce, by Fletcher, J., in Lund 
 V. Tyngsborough, supra. 
 
 2 Moorhonse v. Lord, 10 H. L. Cas. 
 272; Belli>. Kennedy, L. R. 1 Sch. App. 
 307 ; Udny v. Uduy, id. 441 ; Bremer 
 V. Freeman, 10 Moore P. C. C. 306 ; 
 Hodgson V. De Beauchesne, 12 id. 285 ; 
 Attorney-General v. De Wahlstatt, 3 
 Hurl. & Colt. 374 ; Drevon v. Drevon, 
 34 L. J. Ch. 129 ; Hamilton v. Dallas, 
 L. R. 1 Ch. D. 257 ; Douoet v. Geoghe- 
 gan, L. R. 9 Ch. D. 441 ; Crookenden 
 v. Fuller, 1 Swab. & Tr. 441 ; Lowndes 
 V. Douglas, 24 D. (Sc. Seas. Cas. 2d 
 ser. 1862), 1391; The Venus, 8 Cranch, 
 253 ; Ennis v. Smith, 14 How. 400 ; 
 Pennsylvania v. Eavenel, 21 id. 103 ; 
 Mitchell V. United States, 21 Wall. 350 ; 
 Burnham v. Eangeley, 1 Woodb. & M. 
 7 ; Castor v. Mitchell, 4 Wash. C. Ct. 
 191 ; Prentiss v. Barton, 1 Brock. 389 ; 
 Johnson v. Twenty-one Bales, 2 Paine, 
 
 552 
 
 601; s. c. Van Ness, 5 ; Doyle v. Clark, 
 1 Flip. 536; Tobin v. Walkenshaw, 
 McAll. 186 ; Woodworth v. St. Paul, 
 &c. Ey. Co., 18 Fed. R. 282 ; Gorham 
 V. Canton, 5 Greenl. 266 ; Thomaston 
 V. St. George, 5 Shep. (17 Me.) 117 ; 
 Wayne v. Greene, 21 Me. 357 ; Leach 
 V. Pillsbmy, 15 N. H. 137 ; Derby v. 
 Salem, 30 Vt. 722 ; Hulett v. Hulett, 
 37 id. 581 ; Thorndike v. Boston, 1 
 Met. 242 ; Kilbum v. Bennett, 3 id. 
 199 ; Salem v. Lynn, 13 id. 544 ; Cole 
 V. Cheshire, 1 Gray, 441 ; Monson v. 
 Palmer, 8 Allen, 551 ; Wilson v. Terry, 
 9 id. 214 ; 11 id. 206 ; Eeeder v. Hol- 
 comb, 105 Mass. 93 ; Wright v. Boston, 
 126 id. 161 ; Brookfield v. Warren, id. 
 287 ; Dupuy v. Wurtz, 53 N. Y. 556 ; 
 Me Cath. Roberts' Will, 8 Paige Ch. 
 519; Hegemani;. Fox, 31 Barb. 475; Lis- 
 comb V. N. J. E. R. & Trans. Co. 6 Lans. 
 75; Brundred v. Del Hoyo, Spencer, 
 328; Clark and Mitohener v. Likens, 2 
 Dutch. 207 ; Guier v. O'Daniel, 1 Binn. 
 349, note ; Cherry v. Slade, 2 Hawks. 
 400 ; Fleming v. Straley, 1 Ired. 305 ; 
 Griffin v. Wall, 32 Ala. 149 ; Burgess 
 V. Clark, 3 Ind. 250; Hairston v. Hairs- 
 ton, 27 Miss. 704 ; Beason v. State, 34 
 id. 602 ; Cole v. Lucas, 2 La. An. 946 ; 
 Gardner v. O'Conuel, 5 id. 853 ; Verret 
 V. Bonvillain, 83 id. 1304 ; Ex parte 
 Blumer, 27 Tex. 735. This list might 
 be greatly increased; in fact, declarations 
 have been in evidence and have been 
 relied upon either by court or counsel in 
 almost all of the reported cases. 
 ^ See Salem v. Lynn, supra. 
 
§ 453.] DECLARATIONS, ORAL AND WRITTEN. [CHAP. XXVII. 
 
 § 452. Declarations immediately explanatory of the Act of 
 Removal. — .The act which is most usually interpreted by the 
 aid of declarations is the removal itself, — the factum neces- 
 sary for a change of domicil. It has been uniformly held 
 that "what a party says on leaving home or immediately 
 previous thereto, or while on a journey, explanatory of the act 
 or object of leaving home or performing such journey, is ad- 
 missible in evidence, as a part of the res gesta." i But it is 
 necessary that the declarations should be substantially con- 
 temporaneous with the act which they explain.^ It will not 
 do to receive such as are made a long time prior or subsequent 
 to the removal as immediately explanatory of that act. If 
 made long prior they at best but declare a present state of mind 
 which is subject to change,^ and if made long subsequent 
 either a past state of mind which may or may not be accu- 
 rately interpreted and reported,* or a present state of mind 
 which may be different from that existing at the time of re- 
 moval. No length of time, however, can be fixed which must 
 elapse between the removal and the declarations, or the con- 
 trary, in order to make the latter inadmissible.^ Substantial 
 contemporaneity is all that is required to render them part 
 of the res gesta, and this depends much upon the circum- 
 stances of each particular case.® 
 
 § 453. Declarations mediately explanatory of the Act of Re- 
 moval. —But declarations made either before or after may 
 relate mediately to the time and act of removal ; as, for in- 
 stance, where a person residing in one town negotiates for a 
 
 1 Griffin V. Wall, supra. To the v. State, supra ; Gardner v. O'Connel, 
 
 same effect, Bateman v. Bailey, 5 T. R. supra ; Ex parte Blumer, supra. 
 512 ; Eawson v. Haigh, 2 Bing. 99 ; ^ See cases cited in § 451, note 2, and 
 
 Lowndes v. Douglas, supra; Burnham § 452, note 1, supra, and 1 Greenl. Ev. 
 
 V. Rangeley, supra; Doyle «. Clarke, sw- § 110 ; 1 Wharton Ev. § 258 et seg. 
 pra; Woodworth v. St. Paul, &c. Ry. ^ Brookfield v. WaiTen, 128 Mass. 
 
 Co., supra; Gorham i-. Canton, supra; 287 ; and see Washington, J., in The 
 
 Leach v. Pillsbury, supra; Derby v. Venus, 8 Cranch, 253, 281. 
 Salem, supra; Kilbum v. Bennett, su- * Declarations to past purposes are 
 
 pra; Salem v. Lynn, supra; Monson inadmissible. Salem i). Lynn, 13 Met. 
 
 V. Palmer, supra ; Wilson v. Terry, su- 544. And see the cases cited infra, 
 
 pra ; Reeder v. Holcomb, supra ; Brook- § 454, note 3. 
 
 field V. Warren, supra ; Brundred v. ^ See 1 Wharton Ev. , ubi supra, and 
 
 Del Hoyo, supra; Clark v. Likens, su- Lund v. Tyngsborough, 9 Cush. 36. 
 pra; Burgess v. Clark, supra; Beason ^ Id. 
 
 553 
 
§ 454.] 
 
 THE LAW OP DOMICIL. 
 
 [chap. XXVII. 
 
 home in another, his declarations during such negotiations, 
 although made several months before the contemplated and 
 actual removal, are admissible.^ Again, residence abroad is 
 evidence of a change of domicil, and it follows that any decla- 
 rations made during its continuance, explanatory of it or of the 
 present intention of the party with regard to it, may be given 
 in evidence.^ 
 
 § 454. Declarations not Evidence of Facts, but only explana- 
 tory of them. — Declarations are not evidence of facts relating 
 to domicil, but only explanatory of them when otherwise 
 shown ;i thus the declaration of a party that he has lived 
 in a particular place or country is not evidence of that fact 
 when the question arises between other parties,^ and a fortiori 
 would not be evidence in his own favor. Declarations which 
 are simply narrative of a past act or transaction are not ad- 
 missible.^ Whether the oral declarations of a person are 
 
 1 Cole V. Cheshire, 1 Gray, 441 ; 
 and see Kilburn v. Bennett, 3 Met. 
 199, where declarations made at the 
 time of giving notice of removal to the 
 owner of the house in which the person 
 whose domicil was in question lived, 
 were held to he admissible. 
 
 2 Munro v. Munro, 7 CI. & Fin. 842; 
 Whicker u. Hume, 7 H. L. Gas. 124 ; 
 Moorhouse v. Lord, 10 H. L. Gas. 272 ; 
 (.see also the same case before the Vice- 
 Chancellor, sub nom. Lord v. Colvin, 4 
 Drew. 366) ; Bremer v. Freeman, 10 
 Moore P. C. C. 306 ; Hoskins v. Mat- 
 thews, 8 De G. M. & G. 13 ; Attorney- 
 General V. De Wahlstatt, 3 Hurl. & 
 Colt. 374 ; Hamilton v. Dallas, L. R. 
 1 Ch. D. 257 ; Lowndes v. Douglas, 24 
 D. (So. Sess. Gas. 2d ser. 1862) 1391 ; 
 Ennis v. Smith, 14 How. 400 ; Thom- 
 dike V. Boston, 1 Met. 242 ; Dupuy 
 V. Wurtz, 53 N. Y. 556 ; He Cath. 
 Eoherts' Will, 8 Paige Ch. 519; Cherry 
 V. Slade, 2 Hawks. 400 ; and many 
 other cases might be cited. Another 
 reason is given for the admission of 
 such declarations ; namely, that the 
 removal and absence are looked upon 
 as one continuing act. 1 Greenl. Ev. 
 § 110 ; Rawson v. Haigh, 2 Bing. 99. 
 
 564 
 
 But the view stated in the text appears 
 to the vpriter to be the sounder, inas- 
 much as it confines the admission of 
 declarations to those which state the 
 present mind of the person, and rejects 
 those which attempt to state a past 
 mental condition, the recollection of 
 which may be imperfect or colored by 
 subsequently acquired views. 
 
 1 Londonderry ■». Andover, 28 Vt. 
 416 ; Derby v. Salem, 30 id. 722 ; Mon- 
 son V. Palmer, 8 Allen, 551 ; Griffin v. 
 Wall, 32 Ala. 149. 
 
 ^ Id. So also the place of birth can- 
 not be proved by hearsay ; i. e., either 
 by the declarations of the party himself 
 or by reputation. Braintree v. Hing- 
 ham, 1 Pick. 245 ; Wilmington ». Bur- 
 lington, 4 id. 174 ; Union v. Plainfield, 
 39 Conn. 563 ; Kobinson v. Blakeleyj 
 4 Rich. 586 ; Brooks v. Clay, 3 A. K. 
 Marsh. 545 ; Shearer v. Clay, 1 Litt. 
 260 ; 1 Greenl. Ev. § 104, note 1 ; 
 1 Whart. Ev. § 208. 
 
 * Cases cited supra, note 1, and 
 Haynes u Rutter, 24 Pick. 242 ; Salem 
 V. Lynn, 13 Met. 544 ; People v. Davis, 
 56 N. Y. 95, 102 ; 1 GreenL Ev. § 110 ; 
 1 Whart. Ev. § 261, and authorities 
 cited. 
 
§ 455.J 
 
 DECLARATIONS, ORAL AND WRITTEN. 
 
 [chap. XXVII. 
 
 evidence of the fact of even his present residence may well be 
 doubted.* 
 
 The impression made upon a witness by declarations is not 
 evidence ; the declarations themselves must be given.^ 
 
 § 455. Declarations not Conclusive; their Weight depends 
 upon Circumstances. — The declarations of the person whose 
 domicil is sought to be fixed are certainly not conclusive upon 
 the question of his intention ; ^ but with respect to the weight 
 which is to be given them it is difficult to lay down any rule. 
 Acts are regarded as more important than declarations,^ and 
 written declarations are usually more reliable than oral ones.^ 
 
 4 See Derby v. Salem, 30 Vt. 722. 
 On principle they ahould not be so 
 considered. 
 
 6 Moorhouse v. Lord, 10 H. L. Gas. 
 272, 290, per Lord Chelmsford. 
 
 1 Aikman v. Aikman, 3 Macq. H. 
 L. Cas. 854 ; Anderson v. Laneuville, 
 9 Moore P. C. C. 325 ; Hodgson v. 
 De Beauchesne, 12 id. 285 ; Stanley v, 
 Bernes, 3 Hagg. Eccl. 373 ; De Bonne- 
 val V. De Bonueval, 1 Curteis, 856 ; 
 Hoskins v. Matthews, 8 De G. M. & 
 G. 13 ; Brown v. Smith, 15 Beav. 444 ; 
 Drevon v. Drevon, 34 L. J. Ch. 129 ; 
 Crookenden v. Fuller, 1 Swab. & Tr. 
 441 ; Be Steer, 3 Hurl. & Nor. 594 ; 
 Attorney-General v. De Wahlstatt, 3 
 Hurl. & Colt. 374 ; Doucet v. Geoghe- 
 gan, L. K. 9 Ch. D. 441 ; Lowndes 
 V. Douglas, 24 D. (So. Sess. Cas. 2d ser. 
 1862) 1391; The Venus, 8 Cranch, 253; 
 Shelton v. Tiffin, 6 How. 163 ; Butler 
 V. Famsworth, 4 Wash. C. Ct. 101 ; 
 Doyle V. Clark, 1 Flip. 536 ; Thomas- 
 ton V. St. George, 5 Shep. (17 Me.) 117 ; 
 Holmes v. Greene, 7 Gray, 299 ; Dupuy 
 1). Wurtz, 53 N. Y. 556 ; Hegeman v. 
 Fox, 31 Barb. 475 ; Isham v. Gibbons, 
 1 Bradf. 69 ; Sherwood v. Judd, 3 id. 
 267 ; Hindman's Appeal, 85 Pa. 466 ; 
 Smith V. Croom, 7 Fla. 81 ; Wooldridge 
 V. Wilkins, 3 How. (Miss.) 360 ; Bea- 
 son 0. State, 34 Miss. 602 ; Verret v. 
 BonviUain, 33 La. An. 1304 ; and many 
 other cases might be cited. 
 
 2 Anderson o. Laneuville, supra; 
 Stanley v. Bernes, supra; Drevon v. 
 
 Drevon, 34 L. J. Ch. 129 ; Doucet v. 
 Geoghegan, L. R. 9 Ch. D. 441 ; Shel- 
 ton V. Tiffin, 6 How. 163 ; Butler v. 
 Famsworth, 4 Wash. C. Ct. 101 ; Du- 
 puy V. Wurtz, 53 N. Y. 556 ; Isham v. 
 Gibbons, 1 Bradf. 69; Sherwood v. Judd, 
 3 id. 267. 
 
 * Dupuy V. Wurtz, supra ; Lowndes 
 V. Douglas, supra. In the latter case, 
 Inglis, Lord Justice Clerk, said: "I 
 confess I think that more weight is due 
 to written declarations of intention than 
 to oral declarations ; because the terms 
 of such oral declarations are given us 
 by witnesses who heard them, and the 
 value of their testimony must depend 
 on their accuracy of observation at the 
 time the declarations were made, on 
 the precision of their apprehension of 
 the testator's mind, and on the fidelity of 
 their memories. Written declarations 
 of intention are not open to exactly the 
 same objection, but it so happens that 
 in this case even the written declarations 
 of the testator's intention are by no 
 means satisfactory. There is a singular 
 variance between the character the tes- 
 tator assumed to his proposed residence 
 in Jamaica, according as he writes to 
 one person or to another. To his wife's 
 relatives he represents that his residence 
 in Jamaica is only temporary and short. 
 But when he writes to Mr. Blackburn, 
 he speaks of his intended residence 
 in Jamaica as of a more permanent 
 kind." 
 
 555 
 
§ 455.J THE LAW OF DOMICIL. [CHAP. XXVII. 
 
 The value of declarations depends upon a variety of consider- 
 ations, and must be determined in each case by its own cir- 
 cumstances. The time,* occasion,^ and manner® of making 
 them, their reasonableness and consistency with themselves ^ 
 and with the other proven facts in the case,^ the presence or 
 absence of the suspicion of sinister purpose in making them,^ 
 tlie character and temper of the person,^" as well as (if they are 
 oral) the length of time which has elapsed between the time 
 of their alleged utterance and the time when they are testified 
 to,ii etc., enter materially into the estimation of their value. 
 If they are not inconsistent with acts, and are faithfully re- 
 ported, they often serve to turn the scale ; but it is otherwise 
 if they are contradicted by the acts and general conduct of 
 the person making them.^''^ The peevish outbursts of a person 
 of irascible temper, or the careless expressions of one whose 
 habits are unstable and whose purposes are vacillating, are 
 entitled to less weight than the deliberate utterances of a per- 
 son of known firmness of character.i^ So, too, expressions in 
 casual conyersation ^* are of less value than repeated declarar 
 tions made to proper persons,i^ or declarations made in the 
 
 * M g., whether made ante litem and Butler c. Famswortli, SMpra; Doyle 
 
 motam, at a time not suspicious or v. Clark, 1 Flip. 536, and Watson v. 
 
 otherwise. The Venus, 8 Craneh, 253 ; Simpson, 13 La. An. 337. 
 Ennis v. Smith, 14 How. 400 ; Burn- 1° Wayne v. Greene, 21 Me. 357. 
 
 ham V. Rangeley, 1 Woodb. & M. 7 ; See infra, § 458. 
 
 Tobin V. Walkenshaw, McAU. 186 ; " Hodgson v. De Beauchesne, 12 
 
 Thorndike v. Boston, 1 Met. 242 ; Cole Moore P. C. C. 285. 
 «. Lucas, 2 La. An. 946 ; Gardner v. »2 Hoskins v. Matthews, 8 De G. M. 
 
 O'Connel, 5 id. 353. Further, as to & G. 13 ; Doucet v. Geoghegan, L. E. 
 
 time, see supra, § 452, notes 2-5. 9 Oh. D. 441 ; Holmes v. Greene, 7 
 
 ^ See supra, note i, and infra, Gray, 299 ; and cases cited supra, 
 
 notes 14, 15. note 8. 
 
 6 See infra, notes 13-15. ^ Wayne v. Greene, supra. See re- 
 
 ' Griffin v. Wall, 32 Ala. 149; marksofTenney, J., in that case, quoted 
 
 Lowndes v. Douglas, 24 D. (Sc. Sess. infra, § 458. 
 Cas. 2d ser. 1862) 1391. " Moorhouse v. Lord, 10 H. L. Cas. 
 
 8 Anderson v. Laneuville, 9 Moore 272, 288 ; Aikman v. Aikman, 3 Macq. 
 P. C. C. 325 ; Stanley o. Bernes, 3 H. L. Cas. 854 ; Hoskins v. Matthews, 
 Hagg. Eocl. 873 ; Butler v. Farnsworth, 8 De G. M. & G. 13 ; Doucet v. Geo- 
 4 Wash. C. Ct. 101 ; Isham v. Gibbons, ghegan, L. R. 9 Ch. D. 441 ; Brookfleld 
 1 Bradf. 69 ; Sherwood v. Judd, 3 id. v. Warren, 126 Mass. 287 ; Sherwood 
 267 ; Verret v. Bonvillain, 33 La. An. v. Judd, 3 Bradf. 267. 
 
 1304 ; and see infra, note 12. is Moorhouse v. Lord, supra, per 
 
 9 See cases cited in supra, note i, Lord Chelmsford. 
 
 556 
 
§ 456.] DECLARATIONS, ORAL AND WRITTEN. [CHAP. XXVII. 
 
 usual course of business.^^ Mere declarations that a person 
 prefers a residence in one country to another, it has been 
 said, will not be regarded by a court, except in a nicely bal- 
 anced case." Calling a place " home " is not entitled to 
 much weight.^^ 
 
 § 456. Value of Declarations. Remarks of Chancellor Wal- 
 worth. — It may be well now to give a few judicial expres- 
 sions of opinion as to the value of declarations as criteria of 
 intention. 
 
 In an often quoted passage in his opinion in Re Cath. Rob- 
 erts' Will,i Walworth, Ch., said : " These were not mere dec- 
 larations of a future intention to change an actual residence, 
 from Staten Island to the Island of Cuba, for the purpose of 
 changing her domicil. Such declarations, I admit, would not, 
 without an actual removal from the former place of residence, 
 be sufficient to constitute a change of domicil. But in this 
 case it must be recollected that at the time the declarations 
 were made her husband was dead ; and she, having no family, 
 was actually residing in Cuba, where she declared it to be her 
 intention to fix her permanent residence for the remainder of 
 her life. Although it may be difficult to give any general 
 definition of a domicil which will apply to all cases, and Lord 
 Alvanley thought Bynkershoek was wise in not hazarding a 
 definition of the term, I think it cannot be doubted that the 
 
 15 Thomdike v. Boston, 1 Met. 242 ; is to rest its judgment ; the domicil 
 
 Kilbum V. Bennett, 3 id. 199 ; Cole v. cannot depend upon loose declarations 
 
 Cheshire, 1 Gray, 441 ; Brookfield v. of this sort, where there are documents 
 
 Warren, 126 Mass. 287. And see which show that the party looked to 
 
 Munro v. Munro, 7 CI. & Fin. 842 ; France as his home. Unless the evi- 
 
 Moorhouse v. Lord, supra; Hamilton dence was nicely balanced, the court 
 
 V. Dallas, L. E. 1 Ch. D. 257. would pay no regard to such declara- 
 
 1' De Bonneval v. De Bonueval, 1 tions, showing a. preference for a resi- 
 
 Curteis, 856 ; Somerville v. Somerville, dence in this eountiy, and not a decided 
 
 5 Ves. Jr. 750 ; Moorhouse v. Lord, intention to abandon his native land 
 
 supra. See also Hoskins v. Matthews, and take up his sole residence here." 
 8 De G. M. & G. 13. In De Bonneval M Aikman -o. Aikman, 3 Macq. H. 
 
 V. De Bonneval, Sir Herbert Jenner L. Cas. 854, per Lord Cranworth ; and 
 
 said : " 1 do not consider that, in this see remarks of Lord Hatherley in Udny 
 
 case, any more than in Somerville v. v. Udny, L. E. 1 Soh. App. . 441, and 
 
 Somerville, the declarations made by Bramwell, B., in Attorney-General v. 
 
 the deceased at different times that he Eowe, 1 Hurl. & Colt. 31. 
 preferred a residence in this country * 8 Paige Ch. 519. 
 can be a ground upon which the court 
 
 557 
 
§ 458.] THE LAW OP DOMICIL. [CHAP. XXVII. 
 
 actual residence of an individual at a particular place, with 
 the animus manendi, or a fixed and settled determination to 
 make that his permanent residence for the remainder of his 
 life, constitutes that place his domicil ; at least until there is 
 some evidence that his intention to remain there has been 
 abandoned. And the declarations of the party himself, where 
 he can have no object or inducement to falsify the truth or to 
 deceive those to whom such declarations are made, are the 
 best evidence of his intention to make his actual residence his 
 permanent residence also. Here the declarations of the de- 
 cedent appear to have been repeatedly and deliberately made, 
 at different times and to various persons ; and I think there 
 can be no reasonable doubt that she intended what she said." 
 
 § 457. Id. Dr. Lushington in Hodgson v. De Beauchesne. — 
 On the other hand, in an equally well-known passage, Dr. 
 Lushington said, in Hodgson v. De Beauchesne : ^ " With re- 
 spect to verbal declarations made to witnesses who depose 
 thereto, no doubt such declarations are admissible evidence 
 in these questions of domicil ; but the weight to be attributed 
 to them entirely depends on circumstances, — especially the 
 time which has elapsed since they were made, and the circum- 
 stances under which they were made. To entitle such decla- 
 rations to any weight, the court must be satisfied not only of 
 the veracity of the witnesses who depose to such declarations, 
 but of the accuracy of their memory, and that the decla- 
 rations contain a real expression of the intention of the 
 deceased. Such evidence, though admissible, has been con- 
 sidered by many authorities as the lowest species of evidence, 
 especially when, as in this case, encountered by conflicting 
 declarations." 
 
 § 458. Id. Tenney, J., in Wayne v. Greene ; Emmot, J., in 
 Hegeman v. Fox. — The expressions of several other judges 
 may serve still further to illustrate the subject. Said Tenney, 
 J., in Wayne v. Greene : ^ "An individual under excitement 
 and the dominion of angry feelings may express a full deter- 
 mination to leave his residence and the town in which it is 
 situated, and a temporary absence may thereupon follow, and 
 
 1 12 Moore P. C. C. 285. i 21 Me. 357. 
 
 .558 
 
§ 459.] DECLARATIONS, ORAL AND WRITTEN. [CHAP. XXVII. 
 
 still his domicil may not be changed thereby. Those know- 
 ing his temper and habits may be thoroughly satisfied that 
 his intention was not such as he declared. Early attach- 
 ments to a place of residence, connections of blood or afl&nity, 
 ties growing out of the acquaintances formed in youth, often 
 bind one to a particular spot and induce him there to pass 
 his moments of leisure, especially when he has no family 
 located in another place. And these are circumstances ma- 
 terial in determining the intention of the individual thus 
 influenced when he may move from one place to another. 
 The character of his home, his mode of life, his habits, and 
 his disposition, may be important aids in coming to a result 
 on the question of intention. The removal, accompanied 
 with the declaration of a resolution to abandon his residence, 
 of a person possessing known decision of character, firmness 
 of purpose, not subject to sudden excitement, generally be- 
 lieved to carry into effect his expressed intentions, would and 
 ought to make an impression on the mind different from 
 similar declarations and acts of one of an opposite character." 
 Emmot, J., in Hegeman v. Fox,^ remarked : " To the evidence 
 of what he said at various times I attach little importance. 
 It comes to us impressed with the character of the particular 
 mood of the man when he uttered it, which, no doubt varied 
 and was affected by the condition of his health, by his family 
 circumstances, and by other causes. It is colored more or 
 less by the medium through which it comes, and it depends 
 altogether upon the recollection of the witnesses." 
 
 § 459. Id. Lord Justice Turner, in Hoskins v. Matthews ; 
 Lord Chelmsford, in Moorhouse v. Lord. — Said Turner, L. J., 
 in Hoskins v. Matthews : ^ " What was said by Mr. Matthews 
 in his conversations with Mrs. Stephens is, I think, entitled to 
 but little weight. The expressions which are let fall in the 
 course of such conversations are so much influenced by the 
 tone of the mind and the state of the temper at the time, that 
 they cannot, I think, safely be relied on, and certainly cannot 
 be weighed against a series of deliberate acts." In Moor- 
 house V. Lord,^ Lord Chelmsford said : " There are proved on 
 
 2 31 Barb. 475. i 8 De G. M. & G. 13, 30. « 10 H. L. Gas. 272, 2S8. 
 
 659 
 
§ 461 .J THE LAW OP DOMICIL. [CHAP. XXVII. 
 
 this occasion, as there usually are in such cases, written and 
 oral declarations which conflict with each other. I lay no 
 great stress, as your lordships probably would not incline to 
 do, upon casual expressions of preference for one country 
 over another at different periods. The feelings at the mo- 
 ment may dictate them, or the changing circumstances of life; 
 even a change of weather, the difference between a bright 
 and gloomy day, may make all the difference in the expres- 
 sions of attachment to one place or to another. But I do lay 
 very considerable , stress upon declarations made to parties to 
 whom he would be likely to reveal his intentions, those decla- 
 rations not being casual and occasional, but repeated from 
 time to time, and evincing a strong determination to carry 
 into effect the objects which he states." 
 
 Most of what is said in the above-quoted passages has ref- 
 erence particularly to oral declarations, but much of it is 
 applicable also with proper qualifications to such written dec- 
 larations as are not of a specially formal character.^ 
 
 § 460. Written Declarations : Letters. — The declarations 
 contained in the letters of the person whose domicil is in 
 question have frequently been relied upon ^ to explain his in- 
 tention with reference to his absence from liis former place 
 of abode, and great stress has been laid upon them in many 
 cases, especially when the letters were written in the usual 
 course of business, or to give directions concerning the care 
 or disposition of property left behind him.^ 
 
 § 461. Id. Description in Deeds. — The description of his 
 residence given by a person in deeds or other legal documents 
 has often been received as evidence that he is there domi- 
 ciled.i This is mentioned by Pothier as one of the circum- 
 
 " See, e. g., Lowndes v. Douglas, 24 ^ Munro v. Munro, supra; Lord ■». 
 
 D. (Sc. Sess. Cas. 2d ser. 1862) 1391. Colvin, supra; Thomdike v. Boston, 
 
 1 Munro !). Munro, 7 CI. & Fin. 842; supra; Cabot v. Boston, supra; Cole 
 
 Aikman v. Aikman, 3 Macq. H. L. Cas. v. Cheshire, mpra. But see contra, 
 
 854 ; Bell v. Kennedy, L. R. 1 Sell. Wright v. Boston, 126 Mass. 161, and 
 
 App. 307 ; Lord v. Colvin, 4 Drew. Weld v. Boston, id. 166. In these 
 
 366 ; Hoskins v. Matthews, 8 De G. M. cases, however, the letters were written 
 
 & G. 13 ; Hamilton v. Dallas, L. R. 1 too late. 
 
 Ch. D. 25r; Thomdike v. Boston, 1 i Jennison v. Hapgood, 10 Pick. 77; 
 
 Met. 242 ; Cahot v. Boston, 12 Cush. Ward v. Oxford, 8 Pick. 476 ; Smith i>. 
 
 52 ; Cole v. Cheshire, 1 Gray, 441, Croom, 7 Fla. 81 ; Davis v. Binion, 5 
 560 
 
§ 461.] DECLARATIONS, ORAL AND WRITTEN. [CHAP. ZXVII. 
 
 stances to which recourse may be had to fix the place of 
 domicil.2 Such recitals are not subject to the rule above stated 
 with reference to declarations; namely, that they must accom- 
 pany some act which they tend to explain. " The designation 
 of his residence," says Parker, C. J., in Ward v. Oxfoi'd, "in 
 a solemn instrument such as a deed or a will, is in the nature 
 of a fact rather than a declaration ; being made when there 
 is no controversy, and where no possible interest could exist 
 to give a false designation." But such evidence is merely 
 presumptive, and does not conclude anybody ,3 not even the 
 person whose deed it is when domicil is not one of the ele- 
 ments of the contract ; * nor dofis it conclude the grantee who 
 accepts the deed.^ A recital in a recent deed, however, is 
 not evidence in the party's favor,® but is admissible against 
 
 La. An. 24S ; New Orleans v. Shep- 
 herd, 10 id. 268. Kindersley, V. C, in 
 Lord V. Colvin, 4 Drew. 366, 409, said : 
 " It is always considered that the man- 
 ner in which a man descrihes himself in 
 solemn acts and legal documents is an 
 important point in reference to the ques- 
 tion of his domicil." 
 
 2 Intr. aux Cout. d'Orleans, no. 20. 
 See also Cochin, (Euvres, t. 6, p. 231 ; 
 Denizail;, verb. Dom. passim ; Demo- 
 lombe, Cours de Code Napoleon, t. 1, 
 no. 345. 
 
 * Ward ». Oxford, supra; Wright 
 V. Boston, 126 Mass. 161 ; Ishaiu v. 
 Gibbons, 1 Bradf. 69 ; Smith v. Croom, 
 7 Fla. 81 ; Hill v. Spangenburg, 4 La. 
 An. 553 ; Davis v. Binion, 5 id. 248 ; 
 New Orleans v. Shepherd, 10 id. 268 ; 
 Tillman v. Mosely, 14 id. 710 ; Sander- 
 son V. Ealston, 20 id. 312 ; Eicard v. 
 Kimball, 5 Eob. (La.) 142 (affidavit). 
 
 * Davis ■!>. Binion, supra ; New Or- 
 leans V. Shepherd, supra ; Tillman v, 
 Mosely, supra. In Eicard v. Kimball, 
 supra, the defendant, a ship-owner, in 
 an affidavit made for the purpose of 
 procuring an enrolment of his vessel, 
 described himself as having his "usual 
 place of abode or residence in New Or- 
 leans." In a suit brought against him 
 as owner of said vessel, witnesses testi- 
 fied to his residence in Natchitoches 
 
 Parish. It was contended, on behalf 
 of plaintiff, that in all matters relating 
 to the vessel his description in the 
 affidavit was conclusive. But the court 
 held that it was not, and that his dom- 
 icil was in Natchitoches Parish. 
 
 ' Thus, in Wright v. City of Boston, 
 supra (a suit to recover back tax paid 
 under protest), a deed made by the 
 plaintiff to the defendant more than 
 a year before the controversy arose, and 
 in which he described himself as "of Na- 
 hant in the County of Essex," was held 
 to be inadmissible in the plaintiff's favor; 
 Morton, J., remarking: "The accept- 
 ance of a deed by a grantee is slight 
 evidence that the description of his 
 residence therein is correct. He is pre- 
 sumed to know his own residence, and to 
 have an interest in having it correctly 
 stated. But a grantee cannot be pre- 
 sumed to know the residence of the 
 grantor, and his acceptance of the deed, 
 therefore, cannot be held to be an im- 
 plied admission that the grantor's resi- 
 dence is correctly stated." This is of 
 course true, but it does not thence follow 
 that the deed is admissible. But see 
 next note. 
 
 <" Wright V. Boston, supra ; Weld v. 
 Boston, 126 Mass. 166. It seems diffi- 
 cult upon any other grounds to reconcile 
 these cases with the general current of 
 
 561 
 
§ 462.] 
 
 THE LAW OP DOMICIL. 
 
 [chap. XXVII. 
 
 him.''' The acceptance of a deed by a grantee is slight evi- 
 dence that his own residence is correctly stated therein.^ 
 
 § 462. Id. Description in 'WUls. — The description which 
 a person gives of his residence in his will has almost always 
 been received in evidence,^ and generally considerable weight 
 has been attached to it, especially where the controversy is 
 concerning the estate of the testator. Such recitals have 
 been said to be sufficient prima facie to establish domicil.^ 
 They may be admitted even in favor of the party making 
 them.3 Thus, in Gillis v. Gillis, a divorce case, the petitioner, 
 whose domicil of origin was Irish, having resided nineteen 
 years in France, during twelve of which he lived in a house 
 which he had purchased there, the court laid great stress 
 upon the fact that in four wills, executed before anticipation 
 of the suit, he had described himself as domiciled in Ireland, 
 
 the decisions, and particularly with 
 Ward V. Oxford, supra. In Wright i>. 
 Boston, Morton, J., thus distinguishes 
 Ward V. Oxford : "In that case the 
 question was as to the settlement of a 
 pauper who, it was claimed, derived 
 his settlement through his father from 
 his grandfather. It was held that, as 
 evidence tending to show that the set- 
 tlement of the grandfather was in 
 Oxford, office copies of a deed and a will 
 made by the grandfather more than 
 seventy years before the trial, in which 
 he described himself as ' now resident in 
 Oxford,' were admissible. The declara- 
 tions admitted were not the declarations 
 of a party to the controversy. Though 
 such evidence may be competent in proof 
 of an ancient transaction, in regard to 
 which, as in questions of pedigi'ee, the 
 rule against hearsay evidence is relaxed, 
 the case cannot be regarded as an author- 
 ity to the point that the recitals in a 
 recent deed or will are competent evi- 
 dence in favor of the party making them, 
 in a suit against him or his executor." 
 
 ' Weld V. Boston, supra. 
 
 8 Wright V. Boston, supra; Weld v. 
 Boston, supra. 
 
 1 Attorney-General v. Pottinger, 6 
 Hurl. & Nor. 733 ; Lyall v. Paton, 25 
 L. J. Ch. 746 ; Drevon v. Drevon, 34 
 
 562 ■ 
 
 id. 129 ; Goods of West, 6 Jur. ("n. s.) 
 831 ; AUardice v. Onslow, 10 id. 352 ; 
 Crookenden v. Fuller, 1 Swab. & Tr. 
 441 ; Attorney-General v. Fitzgerald, 3 
 Drew. 610 ; Hoskins v. Matthews, 8 
 DeG. M. & G. 13; Doucets. Geoghegan, 
 L. E. 9 Oh. D. 441 ; Gillis v. GUlis, Ir. 
 R. 8 Eq. 597 ; Ennisr. Smith, 14 How. 
 400 ; Ward v. Oxford, 8 Pick. 476 ; 
 Jennison v. Hapgood, 10 id. 77 ; Wil- 
 son V. Terry, 9 Allen, 214 ; Carey's Ap- 
 peal, 75 Pa. St. 201 ; Home v. Home, 
 9 Ired. 99 ; McKowen v. McGuire, 15 
 La. An. 637. But see Wright v. Boston, 
 126 Mass. 161. 
 
 ^ Ennis v. Smith, supra. 
 
 ^ Gillis V. Gillis, supra; Wilson v. 
 Terry, supra. The latter case, however, 
 is overruled by Wright v. Boston, supra. 
 But the doctrine of Wilson v. Terry 
 appears to be in conformity with the 
 general cuiTent of authority upon the 
 subject of declarations in formal docu- 
 ments. It is indeed difficult to perceive 
 why declarations as to residence made 
 in deeds or wills, if admissible at all, are 
 not evidence in favor of the party making 
 them, provided they be made at a time 
 sufficiently remote from the origin of the 
 controversy to render them free from 
 suspicion. 
 
§ 464.J DECLARATIONS, ORAL AND WRITTEN. [CHAP. XXVII. 
 
 and held that this, in connection with his own testimony that 
 his residence abroad was on account of his health and that he 
 intended to return as soon as his health was restored, rebut- 
 ted the inference of a change of domicil flowing from long resi- 
 dence in France and the purchase of a dwelling-house there. 
 
 § 463. Id. Description in Deeds and Wills not Conclusive. — 
 But although such recitals are important either when standing 
 by themselves or when corroborating other evidence, particu- 
 larly in a nicely balanced case, they are by no means control- 
 ling when contradicted by other facts and circumstances.^ 
 
 They are frequently made in both deeds and wills without any 
 special importance being attached to them ; and sometimes are 
 introduced by scriveners without the attention of .the grantor 
 or testator being particularly called to them. Great caution 
 should therefore be used against giving them too great weight, 
 or attaching to them a meaning which was not intended. Said 
 Surrogate Bradford, in a learned opinion in Isham v. Gib- 
 bons : ^ " The declarations of the deceased in his will and in 
 the deed of manumission furnish the only evidence pointing 
 to [the acquisition of a new domicil] . In a nicely balanced 
 case they might be decisive ; but great caution should be used 
 in not giving them too great weight, or attaching to them a 
 meaning not designed by the testator. . . . The truth is, after 
 all, that such written declarations, even of the most solemn 
 character, are but facts to enable the court to discover the 
 intention of the party. It is in this light alone that they are 
 to be received and weighed. At the best, the animus of the 
 party is only to be inferred from them. In this respect they 
 are like any other facts. Declarations of any kind are not 
 controlling, but may be, and frequently are, overcome by 
 other and more reliable indications of the true intention." 
 
 § 464. Id. Description in Judicial Proceedings. — What has 
 been said of recitals in deeds and wills may also be applied to 
 the description which a party gives of his residence in judi- 
 
 1 "Whicker •». Hume, 7 H. L. Caa. 165 ; Ward v. Oxford, 8 Pick. 476; 
 
 124 ; Jopp V. "Wood, 4 De G. J. & S. "Wright v. Boston, supra; Isham «. 
 
 616 ; Re Steer, 3 Hurl. & Nor. 594 ; Gibbons, 1 Bradf. 69. 
 Attorney-General „. Kent, 1 Hurl. & ^ Supra. 
 Colt. 12 ; Gilman v. Gilman, 52 Me. 
 
 663 
 
§ 467.] THE LAW OF DOMICIL. [CHAP. XXVII. 
 
 cial proceedings. It is some evidence of domicil,^ but is not 
 conclusive,^ eveai against himself, in another proceeding.^ 
 
 § 465. Omission to Speak. — The silence of a person is 
 sometimes significant upon the question of his intention. ^ 
 That intention " is manifested by what he does, and by what 
 he says when doing ; and sometimes as significantly by what 
 he omits to do or to say."^ Demolombe^ mentions as an illus- 
 tration of this point, the appearance of a defendant before a 
 tribunal whose jurisdiction depends upon his domicil, without 
 entering a declinatory plea. 
 
 § 466. Form of Will. Spelling of Name. — Before quitting 
 this subject allusion may be made to another matter of evi- 
 dence, which in a certain sense may be considered as a decla- 
 ration of domicil ; namely, the form in which a person makes 
 and executes his will. This has been considered important 
 evidence in some of the English cases. ^ So also has been 
 considered the fact that the provisions of a will were valid 
 according to the law of one country and invalid according to 
 the law of another.^ And in Drevon v. Drevon,^ Kindersley, 
 V. C, thought the fact that the name of the testator (a 
 Frenchman by origin) was spelled in his will in the English 
 instead of the French form, was some evidence of his inten- 
 tion to become an Englishman. 
 
 § 467. Person whose Domicil is in Question may testify to his 
 Intent. — A person whose domicil is in question may, subject 
 to the ordinary rules of exclusion on the ground of interest 
 
 1 Cavendish v. Troy, 41 Vt. 99 ; Beauchesne, 12 Moore P. C. C. 285. In 
 Hegeman v. Fox, 31 Barb. 475 ; Sue- Attorney-General v. De Wahlstatt, Pol- 
 cession of Franklin, 7 La. An. 395 ; lock, C. B., said during the argument : 
 New Orleans v. Shepherd, 10 id. 268. " Surely the fact of the testatrix making 
 
 2 De Bonneval v. De Bonneval, 1 her will in England, and according to 
 Curteis, 856 ; Hegeman v. Fox, supra ; the law of England, was the strongest 
 New Orleans v. Shepherd, supra. declaration that she considered she had 
 
 * New Orleans v. Shepherd, supra. an English domicQ." But see, contra, 
 
 1 Guier v. O'Daniel, 1 Blnn. 349, Bremer v. Freeman, 10 Moore P. C. C. 
 note ; Cole v. Cheshire, 1 Graj', 441. 306, where the Privy Council considered 
 
 2 Thomas, J., in Cole v. Cheshire. the fact that an English womau long 
 ^ Cours de Code Napol(5on, t. 1, no. resident in France made her wiU in 
 
 ^*5- English form as of little weight in 
 
 1 Attorney-General v. De Wahlstatt, showing that she retained her English 
 
 3 Hurl. & Colt. 374; Drevon v. Drevon, domicil. 
 
 34 L. J. Ch. 129 ; Doucet v. Geoghegan, 2 Doucet v. Geoghegan, supra. 
 
 L. E, 9 Ch. D, 441 ; Hodgson v. De » 34 L. J. Oh. 129 
 664 
 
§ 467.] PARTY MAY TESTIFY TO HIS mTENT. [CHAP. XXVII. 
 
 and the like, where they prevail and are applicable, testify 
 concerning his intention at the time of removal, or during his 
 absence, or, indeed, in explanation of the purpose with which 
 any act in evidence was done.^ Tlie weight to be given to his 
 testimony is, of course, to be determined by circumstances, 
 and in accordance with the general rules applicable to cases 
 other than those of domicil. Such testimony cannot be ac- 
 cepted as conclusive upon the question of intention if contra- 
 dicted by the acts and general conduct of the party .^ It is, 
 indeed, to be received with caution in all cases, whether or 
 not the person be interested in the proceeding, particularly if 
 given after the lapse of considerable time, because of " the 
 natural, though it may be unconscious, tendency to give to 
 liis bygone feelings a tone and color suggested by his present 
 inclinations." ^ 
 
 1 Maxwell v. McCIure, 6 Jur. (n. s. ) 
 407; Bell v. Kennedy, L. K. 1 Sch. App. 
 307 ; "Wilson v. Wilson, L. R. 2 P. & D. 
 435 ; Gillis v. Gillis, Ir. E. 8 Eq. 597 ; 
 Kemna v. Brockhaus, 10 Biss. 128 ; 
 "Wood worth v. St. Paul, etc. Ey. Co. 18 
 Fed. R. 282 ; Parsons v. Bangor, 61 Me. 
 457 ; Stockton a. Staples, 66 id. 197 ; 
 Hulett V. Hulett, 37 Vt. 581 ; Fisk v. 
 Chester, 8 Gray, 506 ; Hallet v. Bassett, 
 100 Mass. 167 ; Reederw. Holcomb, 105 
 id. 93 ; Thayer v. Boston, 124 id. 137 ; 
 "Wright V. Boston, 126 id. 161 ; Weld 
 ■u. Boston, id. 166 ; Mooar v. Harvey, 
 128 id. 219; Hall v. Hall, 25 "Wis. 600 ; 
 Keith V. Stetter, 25 Kaus. 100 ; "Ven- 
 able V. Paulding, 19 Minn. 488 ; Clarke 
 V. Territory, 1 "Wash. Ter. 82. 
 
 2 Wilson V. Wilson, supra; Hulett 
 V. Hulett, supra; Wright v. Boston, 
 supra; Weld D. Boston, supra; Mooar 
 V. Harvey, supra; Keith v. Stetter, 
 supra. In Wilson v. Wilson, Lord Pen- 
 zance said : " The court must not take 
 his word as conclusive proof of the fact ; 
 and if there are circumstances in the 
 case which tend to show that what he 
 says is not true or likely to be trae, they 
 may influence the conclusion at which 
 the court would arrive." In Hulett 
 V. Hulett, Poland, J., thus discusses the 
 
 subject : "This defendant was allowed 
 to testify as to his design and intent in 
 coming to Fairhaven, that it was for a 
 temporary purpose, with no design to 
 remain and make that his home. This 
 was objected to on the ground that a 
 party should not be allowed to swear to 
 his intent or mental purpose, because it 
 is not in the power of the other party 
 to contradict him by similar evidence. 
 Of course the workings and purposes of 
 the mind and will of a person are not 
 known by mere consciousness to any one 
 but the person himself ; but still, where a 
 person's intent in a particular transaction 
 is a question in issue to be tried, we .see 
 no ground on which he can be excluded 
 from testifying to his intent. He can 
 be contradicted only by his acts and 
 conduct or declarations. But where a 
 party swears to his intent, if his acts and 
 conduct are shown to be wholly at vari- 
 ance and inconsistent with the intent he 
 swears to, his own testimony in his own 
 favor would ordinarily obtain very little 
 credit with the jury ; and but little dan- 
 ger need be apprehended from such tes- 
 timony unless his acts and conduct are 
 consistent with it." 
 
 ' Lord Colonsay, in Bell v. Kennedy, 
 L. E. 1 Sch. App. 307. 
 
 565 
 
INDEX. 
 
 A. 
 
 ABANDONMENT, Section 
 
 of old domicil necessary for the acquisition of the new . . • 151 
 
 presumption always against 151 
 
 must clearly appear . . 151, 205 
 
 burden of proof on him asserting it 151 
 
 not discharged by merely showing absence 151 
 
 not a mere matter of sentiment .... . . 153 
 
 former place of abode need be abandoned only as a place of abode 160 
 therefore occasional returns or the retention of landed estate will 
 
 not prevent a change of domicil .... . . 160 
 
 effect of retention of dwelling-house or other place of residence 
 
 upon 160 
 
 need not be express or conscious 161 
 
 may be implied from intention to remain elsewhere .... 161 
 
 but in such case the inference must be clear and unequivocal . 161 
 of former place of abode not always necessary for a change of 
 
 municipal domicil ... . . 184 
 
 of acquired domicil must clearly appear in order to accomplish 
 
 reverter of domicil of origin .... .... . . 205 
 
 must be final and complete 205 
 
 ABSCONDING DEBTORS, 
 
 domicil of ... 286 
 
 ABSENCE, 
 
 temporary, cum animo reve.rtendi, no change of domicil 151, 182 
 illustrative cases 152 
 
 ACQUIRED DOMICIL, 
 
 not the subject of reverter 208 
 
 (See also Domicil of Choice.) 
 
 ACQUISITION OF DOMICIL, 
 
 does not depend upon residence alone 380 
 
 (See also Change of Domicil.) 
 
 ACT AND INTENTION, 
 
 necessary for a change of domicil 125 et seq., 182 et seq. 
 
 (See also Animus et Factum.) 
 
568 INDEX. 
 
 ACTIONS, LIMITATION OF. Section 
 
 (Sie Limitation.) 
 
 ACTS, 
 
 more important as evidence of domicil than declarations . . . 455 
 
 ADOPTED CHILD, 
 
 domioil of 247, 248 
 
 (See also Infant.) 
 
 ADOPTION, 
 
 i-elation of domicil to 32 
 
 ALLEGIANCE, 
 
 and domicil distinct 144-147,193 
 
 change of, not involved in a change of domicil .... . 195 
 
 AMBASSADORS, 
 
 domicil of 317-322 
 
 the domicil of a person is not affected by entering the diplo- 
 matic service of his country abroad .317-320 
 
 this principle placed on several grounds 
 
 (a) the fiction of extra-territoriality . . . . 317-319 
 
 (i) the presumption of temporary residence 320 
 
 Attorney-General v. Kent 318, 319 
 
 can an ambassador acquire a domicil in the country to which 
 he is accredited ? 321 
 
 AMERICAN JURISPRUDENCE, 
 
 domicil in . 20 
 
 ANGLO-INDIAN CASES 155, 157, 360 note 
 
 ANIMUS, 
 
 character of (national and g'uasi-national domicil) . . . 137 el seq. 
 implies (1) caj>acity to choose ... . . . . 137 
 
 (2) freedom of choice 138 
 
 compulsory change of bodily presence no change 
 
 of domicil (see Soldieu, Pkisonee, Exile, 
 Pauper, Refugee, Fugitive from Jus- 
 tice, etc.). 
 
 where absence is originally voluntary, but party is 
 unable to return, no change of domicil ensues . 139 
 
 motive distinguished from compulsion . . . 140-142 
 
 (See Motive.) 
 
 (3) actual choice .... 143 
 
 mere absence from former place of abode does not 
 
 per se affect domicil . 143, 151 
 
 nor presence in another place 143, 162 
 
 the requisite animus is not intention to change political nation- 
 ality 144 e< spq. 
 
 allegiance and domicil entirely di.itinct 144 
 
 Lord Westbury, in Udny v. Udny 144, 195 
 
 Lords Cranworth and King-sdown. in Moorhouse v. Lord 145, 148 
 Bacon, V. C, in Brunei v. Brunei 147 
 
INDEX. 569 
 
 A NIMUS — continued. Section 
 
 nor intention to change civil statux 148, 149 
 
 Wickens, V. C, in Douglas v. Douglas 148 
 
 Steer's case 149 
 
 the requisite animus defined 150 
 
 need not be present at time of removal ; may grow up after- 
 wards 178, 392 
 
 complex and often difficult to prove 365 
 
 how provable 365 et seq. 
 
 requisite for change of municipal domicil. 
 
 (See Municipal Domicil.) 
 
 ANIMUS ET FACTUM, 
 
 necessary for a change of domicil . . . 125 et seq., 182 et seq., 380' 
 (See Animus, Animus Manendi, Animus non Revektendi, 
 and Factum.) 
 
 ANIMUS MANENDI, 
 
 in national and guasi-national domicil 162 et seq. 
 
 as necessary for the accomplishment of a change of domicil as 
 
 animus non revertendi 162 
 
 therefore temporary presence in a place sine animo manendi does 
 
 not establish a domicil there 143, 162 
 
 the Koman law throws little light upon the nature of the . . . 163 
 but permanency was apparently an essential ingredient in the 
 
 Roman idea of domicil 163 
 
 expressions of continental jurists concerning 164, 165 
 
 although differing with respect to the requisite degree, they 
 
 all insist upon substantial permanency 165 
 
 British authorities 166-169 
 
 insist upon substantial permanency 166 
 
 intention to remain " for an unlimited time " . . 166, 167, 195 
 
 intention to " settle " 167, 193 
 
 intention to remain for an indefinite time 168 
 
 intention to remain during the life of another 169 
 
 American authorities 170 e< seq. 
 
 much confusion and looseness of expression among them 
 with respect to the animus manendi . ...... 170 
 
 intention to remain permanently usually laid down or as- 
 sumed 170 
 
 intention to remain " for an unlimited time " 170 
 
 " for an indefinite time " considered sufficient by many . 171 
 objections to the use of this phrase with respect to 
 
 national or juasi-national domicil 171, 172 
 
 intention to make the new place of abode the " home " of the party 173 
 
 negative view of the animus manendi 174 
 
 residence in a place " without any present intention of re- 
 moving therefrom " 174 
 
 objections to this view 174 
 
 animus manendi does not exclude the possibility of future 
 changes 175 
 
570 INDEX. 
 
 ANIMUS MANENDI — continued. Section 
 
 mere conditional or contingent animus manendi not sufficient . 176 
 
 intention to reside presently necessary 177 
 
 animus manendi necessary for change of municipal domicil. 
 (See Municipal Domicil.) 
 
 ANIMUS NON REVERTENDI, 
 
 old domicil must be abandoned before a new one can be 
 
 acquired 151 
 
 presumption always against abandonment .... ... 151 
 
 which must therefore clearly appear 151 
 
 burden of proof on him asserting it ... 151 
 
 not discharged by merely showing absence . .... 151 
 
 temporary absence cum animus revertendi no change of domicil . ] 51 
 
 illustrative cases .... 152 
 
 abandonment not a mere matter of sentiment 153 
 
 " floating intention to return, — Story's proposition . . 154 et seq. 
 examination of the authorities upon which Story's proposi- 
 tion was based 15.5 
 
 Anglo-Indian cases 155 
 
 near and remote contingency 156-158 
 
 Lord Campbell, in Aikman v. Aikman . . . . 15(5 
 
 Craigie v. Lewin 157 
 
 how far applicable in view of the recent English cases . . 158 
 
 Story's proposition in the American cases 159 
 
 occasional returns to former place of abode do not prevent a 
 
 change of domicil 160 
 
 nor does retention of landed estate there . .... 160 
 as to the effect of retention of dwelling-house or other place 
 
 of residence, 5«<Ere . 160 
 
 am'mus reue?"(en(Zi need not be express or conscious . . . 161 
 
 may be implied in intention to remain elsewhere .... 161 
 
 but in such cases the inference must be clear and unequivocal 161 
 
 necessary for accomplishment of reverter of domicil of origin . 205 
 
 must clearly appear 205 
 
 contingent animus non revertendi not sufficient 205 
 
 unless the contingency be a distant or improbable one . . 205 
 (See also Abandonmknt and Municipal Domicil.) 
 APPRENTICE, 
 
 domicil of 246 
 
 (See also Infant.) 
 ASSIGNMENTS OF MOVABLES, 
 
 particular and general 40 e« seq. 
 
 (See also Movables.) 
 ATTACHMENTS, FOREIGN, 
 
 relation of domicil to jurisdiction in 49 
 
 AUTHORIZATION TO ESTABLISH DOMICIL, 
 
 domicil of foreigners in countries whose laws provide for . 341 et seq. 
 (See also France,) 
 
INDEX. 571 
 
 B. 
 
 BETROTHAL, Section 
 
 does not joer se work a change of domioil 210,211 
 
 as evidence of domicil 409 
 
 BIBLIOGRAPHY OP DOMICIL •. 22 e« se?. 
 
 BIRTH, 
 
 domicil of. 
 
 (See Domicil of Origin.) 
 
 place of, ;jrima/acie domicil of origin 105,362 
 
 but not necessarily 105, 362 
 
 place of, cannot be proved by hearsay 454, note 2 
 
 BRITISH JURISPRUDENCE, 
 
 domicil in 17 ei seq. 
 
 only lately introduced 17 
 
 early English cases 18 
 
 early Scotch cases 18a 
 
 Bruce v. Bruce and its sequents 19 
 
 BURDEN OF PROOF, 
 
 on him asserting abandonment of former domicil 151 
 
 which is not discharged by merely showing absence . . 151 
 
 on him alleging a change of domicil generally 181, 362 
 
 on him alleging a change of domicil of origin . 115-118, 122, 380 
 which is not discharged by showing mere residence elsewhere 380 
 
 contra 378 
 
 on him asserting reverter of domicil of origin 203 
 
 BURIAL, 
 
 place of . . . 427 
 
 BURIAL-PLACE, 
 
 purchase of 428-430 
 
 sale of 431 
 
 BUSINESS, 
 
 residence and engaging in, as evidence of domicil . . . .410-412 
 place of residence preferred to place of business as domicil . . 418 
 
 C. 
 
 CAPACITY, PERSONAL. 
 
 (See Wife, Infant, Marriage, Succession.) 
 
 CHANGE OF BODILY PRESENCE, 
 
 necessary for a change of domicil 125 e? ««</., 182 
 
 but will not of itself constitute a change of domicil . . 125, 126, 135, 
 
 136, 182 
 how far necessary for reverter of domicil of origin 191 et seq.. 204, 206 
 (See also Factum.) 
 
572 INDEX. 
 
 ion 
 
 CHANGE OF DOMICIL, Sect! 
 
 aquestion of act and intention (factum etanimus) 125 etseq., 182 etse(j. 
 neither act nor intention by itself sufficient . 125 et seq., 182 et seq. 
 the requisite act ov factum for. 
 
 (See Factum.) 
 the requisite intention or animus for. 
 (See Animus, Animus Manendi, Animus non Revertendi.) 
 
 residence in a definite locality not necessary for 1.33 
 
 at what point of time domicil vests and is divested 179 
 
 new doraicil vests instantly upon the concurrence of the requi- 
 site animus et factum 179 
 
 old domicil is divested instantly upon the vesting of the new . 179 
 
 a serious matter and presumed against 124 
 
 burden of proof on him asserting 124, 181, 862 
 
 how proved ... 362 et seq, 
 
 proof of, relative; each case depends upon its own circum- 
 stances 366 et seq. 
 
 probabiles conjecture to be resorted to for determination of . . 371 
 relative amount of proof required to show change of national, 
 
 (^uasi-national, and municipal domicil 362 
 
 id. domicil of origin and domicil of choice 862 
 
 domicil cannot be changed in itinere . 130 et seq. 
 
 contrary view maintained by some in" event of death in 
 
 itinere 128, 129 
 
 exception in favor of reverter of domicil of origin 127, 190 et seq. 
 a fortiori no change takes place when the territorial limits of 
 
 the old domicil have not been passed 132 
 
 change of national or juasi-national domicil 121 et seq. 
 
 change of municipal domicil 180 et seq. 
 
 reverter of domicil of origin 190 et seq. 
 
 (See Reverter, etc.) 
 
 CHILDREN, 
 
 residence of, evidence of the domicil of parent 406 
 
 (See also Infant.) 
 
 CHOICE, DOMICIL OF. 
 
 (See Domicil of Choice.) 
 
 CITIZENSHIP, 
 in general. 
 
 (See Nationality and Naturalization.) 
 judicial. 
 
 (See Judicial Citizf.nship.) 
 
 municipal, in the Roman law 2 et seq. 
 
 (See also Origo.) 
 
 CIVIL OFFICERS. 
 
 (See Public Civil Officers.) 
 
 CIVITATES, 
 
 in the Roman law 1 
 
INDEX. 573 
 
 CIVITATIS, JUS. Section 
 
 (See Citizenship.) 
 
 CLASSIFICATION OP DOMICIL 102, 103 
 
 CLIMATE, 
 
 preference for a particular, on account of health does not pre- 
 vent a change of domicil 141 
 
 (See also Invalids.) 
 CODE, ROMAN, 
 
 definition of domicil contained in. 
 
 (See Definitions.) 
 CODIFICATION, 
 
 efiect of, upon the application of domicil to the determination 
 of legal relations 16 
 
 COLONIM, 
 
 in the Roman municipal system ... 1 
 
 COMPULSION AND MOTIVE, 
 
 distinction between ... 140, 141 
 
 sometimes very shadowy and hard to apply 141 
 
 COMPULSORY CHANGE OF BODILY PRESENCE, 
 
 no change of domicil 138 et seq., 183, 270, 272 et seq. 
 
 (See also Exiles, Paupers, Prisoners, Refugees, Soldiers, etc.) 
 CONSTRUCTION, 
 
 of marriage contracts. 
 
 (See Marriage.) 
 of wills. 
 
 (See Succession.) 
 
 CONSULS, DOMICIL OF 323, 324 
 
 a person does not change his domicil by residence abroad in the 
 
 consular sei-vice of his country . 323 
 
 nor by accepting a consular appointment in his own country in 
 
 the service of a foreign country 323 a 
 
 a consul may acquire a domicil in the foreign country in which 
 
 he serves 324 
 
 CONTINGENCY, 
 
 near and remote 156-158 
 
 CONTINGENT INTENTION, 
 
 animus manendi, in national and jwasi-national domicil . . . 176 
 
 in municipal domicil 188 
 
 animus non revertendi 156-158 
 
 CONTINUANCE OP DOMICIL, 
 
 presumption of 115, 122 e< sey., 151, 362 
 
 " CONVEESATIO ASSIDUA," 
 
 equivalent to " residence " 377 
 
 evidence of domicil .... 377 
 
 CRITERIA OP DOMICIL. 
 
 (See Evidence.) 
 CUSTOMS, LOCAL. 
 
 (See Local Laws and Customs.) 
 
674 INDEX. 
 
 D. 
 
 Section 
 DEATH IN ITTNERE 128 e< seq., 193, 194, 200 
 
 DEATH, PLACE OF, 
 
 theoretically prima facie evidence of domicil . 426 
 
 but practically of little or no significance if any of the facts of 
 
 the person's life be known .... 426 
 
 DEBTOR, ABSCONDING, 
 
 domicil of 286 
 
 DECLARATIONS US et seq. 
 
 admissible against the party making them 449 
 
 accompanying and explanatory of acts admissible as part of the 
 
 res gestae . 451 
 
 immediately explanatory of the act of removal . ... 452 
 
 must be substantially contemporaneous with the act . . 452 
 
 mediately explanatory of the act of removal .... . 453 
 
 explanatory of absence ... . . . ... 453 
 
 not evidence of facts 454 
 
 impression made upon witness by declarations not evidence . . 454 
 
 not conclusive; their weight depends upon circumstances . . 455 
 
 acts more important than declarations . . ... . 455 
 
 written declarations more reliable than oral ones .... 455 
 
 remarks of various judges upon the value of declarations in 
 
 cases of domicil 456-459 
 
 Chancellor Walworth, in Re Cath. Roberts' Will .... 456 
 
 Dr. Lushington, in Hodgson v. DeBeauchesne . . . 457 
 
 Tenney, J., in Wayne v. Greene . 458 
 
 Emmot, J., in Hegeman v. Fox . . 458 
 
 Lord Justice Turner, in Hoskins v. Matthews . . . 459 
 
 Lord Chelmsford, in Moorhouse v. Lord . . . 459 
 
 written declarations ... 460-464 
 
 letters . . .... . , 460 
 
 descriptions in deeds . 461 
 
 descriptions in wills ... 462 
 
 descriptions in deeds and wills not conclusive 463 
 
 descriptions in judicial proceedings .... ... 464 
 
 omission to speak ; silence ... . 465 
 
 form of will . 4gQ 
 
 spelling of name . 4Q6 
 
 formal declarations of domicil 450 
 
 DEED OF SEPARATION, 
 
 domicil of wife not affected by living apart from her husband 
 
 under a 216 
 
 effect of, upon the right of either party to sue for restitution of 
 
 conjugal rights 216 
 
INDEX. 575 
 
 DEEDS, DESCRIPTIONS IN, Section 
 
 evidence of domicil 461 
 
 but not conclusive 463 
 
 DEFINITIONS, 
 
 difficulty of defining domicil 57 
 
 definitions of the Roman law 58-61 
 
 (a) definition of the Code 58-60, 374, 401 
 
 (b) definitions of the Digest 61, 374 
 
 ' definitions of domicil by 
 
 the older continental jurists 62 
 
 Donellus 62 
 
 John Voet 62 
 
 Hertius 62 
 
 Cujas 62 
 
 Pothier .(Pandects) 62 
 
 Vattel 63 
 
 of the French jurists 63 
 
 Denizart .... 63 
 
 Pothier (Cout. d' Orleans) 63 
 
 Encyclopedie Moderne 63 
 
 Code Civil 63 
 
 Demolombe 63 
 
 Proudhon . . 63 
 
 Demante 63 
 
 Ortolan 63 
 
 Marcade 63 
 
 other continental jurists 64 
 
 Savigny 64 
 
 Calvo 64 
 
 American definitions 65 
 
 Story 65 
 
 President Rush, in Guier v. O'Daniel 65 
 
 Parker, J., in Putnam v. Johnson 65 
 
 Louisiana Civil Code 65 
 
 English judges 6S 
 
 Kindersley, V. C, in Lord v. Colvin 66 
 
 Lord Wensleydale, in Whicker v. Hume 66 
 
 English text-writers 67 
 
 Phillimore 67 
 
 Foote 67 
 
 Westlake 67 
 
 Dicey 67 
 
 miscellaneous definitions of domicil 68, note 1 
 
 Wolff (Jus Gentium) ' 68 
 
 Forcellini (Lexicon) 68 
 
 Gliick. 68 
 
 BouUenois • 68 
 
 Desquiron 68 
 
 Vallette 68, note 1 
 
576 INDEX. 
 
 DEFINITIONS — continued. Section 
 
 Emmery .... .... 68 
 
 Italian Code 68 
 
 Sardinian Code 68 
 
 Court of Cassation in Melizet's case . 68 
 
 El Dicoionario de Legislacion 68 
 
 Paige, J., in Crawford v. Wilson 68 
 
 Woodward, J., in Chase v. Miller 68 
 
 Wing, J., in Rue High Appellant 68 
 
 Bishop (Marr. & Div.) C8 
 
 usually not broad enough to include all phases of domicil . . 68 
 
 is domicil place or legal relation ? 09 
 
 domicil defined by " home " 70-72 
 
 domicil defined by " residence " 73-75 
 
 of domicil suggested ... 72 
 
 of residence 74 
 
 of habitancy or inhabitancy 76 
 
 of domicil, national, (y«asi-national, and municipal .... 77 
 of domicil in the Roman law mainly /ormuZce of evidence . . 374 
 
 DESCRIPTIONS, 
 
 in judicial proceedings 464 
 
 in deeds and wills 461-463 
 
 DIVORCE, 
 
 jurisdiction in, depends upon domicil 39 
 
 can wife entitled to, establish a domicil for herself . . 39, 223 et seq. 
 
 DIVORCED WOMAN, 
 domicil of. 
 
 (See Wife.) 
 DOMICIL, 
 acquired. 
 
 (See Domicil op Choice.) 
 acquisition of. 
 
 (See Changb op Domicil.) 
 application of, to various purposes in public and private inter- 
 national and municipal law .... 25 e/ seq. 
 
 bibliography of 22-24 
 
 change of. 
 
 (See Change op Domicil.) 
 
 classification of 102, 103 
 
 cnteria of Z62 et seq. 
 
 (See also Evidence. 
 
 definitions of 57 e( geq. 
 
 (See also Definitions.) 
 
 in American jurisprudence 20 
 
 in British jurisprudence 18,19 
 
 and allegiance 144 e( seq., 185 
 
 and home; similarity 70 
 
 differences 71 
 
 home the fundamental idea of domicil 72 
 
INDEX. 577 
 
 DOMICIL — continued. Section 
 
 and inhabitancy . . 76 
 
 and residence 73 et seq. 
 
 " residence " in American legislation usually, although not 
 
 always, means domicil .... 75 
 
 national, juasi-national, and municipal, distinguished .... 77 
 (See also National Domicil, Quasi-National Domicil, and Muni- 
 cipal Domicil.) 
 
 general rules of 78 et seq. 
 
 (See also General Rules.) 
 evidpnce of. 
 
 (See Evidence, Burden of Proof, Presumptions, etc.) 
 
 reverter of 190 et seq. 
 
 (See also Reverter of Domicil.) 
 of particular persons. 
 (See Wife, Infant, Non Compotes, Paupers, Prisoners, Exiles, 
 Refugees, Invalids, Soldiers, Sailors, Public Civil Officers, 
 Ambassadors, Consuls, and Students.) 
 in particular places. 
 
 (See France and Eastern Countries.) 
 
 once shown, presumed to continue 382 
 
 (See also Presumptions.) 
 once acquired continues until another is acquired . . 82, 113, 201 
 when domicil vests and is divested 184, 179 
 
 DOMICIL OF CHOICE, 
 
 described by Lord Westbury 195 
 
 gained animo et facto 125 et seq., 193-195 
 
 and, according to the doctrine of Udny v. Udny, may be lost by 
 mere abandonment and without acquii'ing another domicil of 
 choice 192 et seq. 
 
 according to the American authorities continues until another 
 
 domicil is gained 82, 113, 201 
 
 (See also Change of Domicil.) 
 
 slighter proof required to show the loss of domicil of choice 
 than of domicil of origin .... 362 
 
 stronger proof required to show the substitution of one domicil 
 of choice for another than to show reverter of domicil of 
 origin 362 
 
 not the subject of reverter 208 
 
 DOMICIL OF ORIGIN 104 e< seq. 
 
 every person receives at birtn a ... 104, 195 
 
 not the same as origo in the Roman law ....... 6, 104 
 
 various phrases used as equivalent to ....'.. 104, note 3 
 
 forum originis an incorrect expression 104, note 3 
 
 how constituted 105, 195 
 
 of legitimate child .... 105, 195 
 
 of illegitimate child 105, 195 
 
 of foundling 105 
 
 37 
 
578 INDEX. 
 
 DOMICIL OF OBJGW— continued. Section 
 
 of posthumous child . . 105 
 
 place of birth /in'ma /acts domicil of origin 105 
 
 but not conclusively 105 
 
 in the Roman law , 106 
 
 opinions of Civilians concerning ... . ... 107, 108 
 
 id. immutability 107 
 
 id constitution and change 108 
 
 in British and American jurisprudence . . . 109 et seq., 190 et seq. 
 
 " clings closely " 110 et seq, S62 
 
 doctrine of Udny c. Udny Ill et seq., 192 et seq. 
 
 not likely to be held in this country . 113 
 
 cannot be extinguished by act of the party ... . . Ill, 195 
 
 may be extinguished by act of. the law . 111,195 
 
 adheres until another domicil is acquired 114, 195, 380 
 
 presumption against change of 115-118, 380 
 
 this presumption modified by circumstances 116, 117 
 
 applies also in favor of resumed domicil of 
 
 origin 118 
 
 bui'den of proof on him alleging a change of domicil of origin . 380 
 which is not discharged by showing mere residence else- 
 where . . 380 
 
 contra 378 
 
 stronger proof required to show loss of, than loss of domicil of 
 
 choice 362 
 
 " reverts easily " IIQ et seq., 190 et seq., S62 
 
 (See also Reverter of Domicil.) 
 slighter circumstances required to show re-acquisition of domicil 
 of origin than acquisition of domicil of choice .... . 119 
 
 the principle, however, a relative one . . 120 
 
 a matter wholly irrespective of any animus on the part of its 
 
 subject 193 
 
 cannot be obliterated . ... 195 
 
 is put in abeyance on acquisition of domicil of choice . . . . 195 
 
 a highly technical fiction . . . . . 199 
 
 a person may have domicil of origin in a country without ever 
 having been there 199 
 
 DOMICILTUM, 
 
 in the Roman law 5 
 
 texts concerning, collected 5, note 
 
 and origo 2 et seq. 
 
 (See also Origo and Domicilium.) 
 
 DOMWILWM ORIGINIS. 
 
 (See Domicil of Origin.) 
 
 DOUBLE RESIDENCE 421-425 
 
 residence in several States or countries 422 
 
 municipal districts 423 
 
 may a per.son having several residences elect his domicil? . . 424 
 
 dwelling-house upoti the dividing line of two districts .... 425 
 
INDEX. 579 
 
 DWELLING-HOUSE, Section 
 
 ownership of, as evidence of domicil 417 
 
 sale of, as evidence of domicil 418 
 
 purchase of, as evidence of domicil 419 
 
 on dividing line of two districts 425 
 
 E. 
 
 EASTERN COUNTRIES, 
 
 domicil in 358-361 
 
 different rules for the determination of domicil applicable to 
 
 Eastern aud to Western countries 358 
 
 presumption against a change of domicil to the former sti'onger 
 
 than to the latter 358-360 
 
 Lord Stowell, in The Indian Chief 358 
 
 Dr. Lushington, in Maltass v. Maltass . . . . 359 
 
 Chitty, J., in Me Tootal's Trusts 360 
 
 can an American or European acquire a domicil in an Eastern 
 country? . ... 360, 361 
 
 EAST INDIAN CASES 155, 157, 360, note 
 
 EMANCIPATED MINOR. 
 
 (See Infant.) 
 
 EVIDENCE RELATIVE TO DOMICIL, 
 
 general principles of, recapitulated 862 
 
 each case must be determined upon its own circumstances 366 et seq. 
 
 all the facts of a man's life are evidence of his domicil . 369 et seq. 
 
 " acts and declarations " . . . . .... 369 
 
 "conduct". ... 369 
 
 " train of conduct " .... 866 
 
 "mode of life" . . ... . . . . 369 
 
 "habits" 869 
 
 disposition .... . . . 369 
 
 character . . . . . . . ... . 869 
 
 pursuits . , . . 369 
 
 domestic relations . 369 
 
 family, fortune, and health .... 869 
 
 " the whole history of the man from his youth up " . . 369 
 
 no fact is of itself conclusive ... 369 et seq. 
 
 although certain facts are usually entitled to more weight 
 
 than others 378 
 
 and scarcely any is too trivial 369 et seq. 
 
 how facts are to be construed . . , 372 
 
 probabiles conjecturm 871 
 
 definitions of domicil in the Roman law mainly formuloe of 
 
 evidence 374 
 
 presence at a ^\a,c& prima facie evidence of domicil there . . 875 
 
 but is not conclusive . 376 
 
680 INDEX. 
 
 EVIDENCE RELATIVE TO DOMICIL — continued. Section 
 
 residence as evidence of domicil 377 et seg 
 
 (See also Residence.) 
 
 length of residence or time 382 et seq. 
 
 (See also Time.) 
 
 residence of wife and family 401 et seq. 
 
 (See also Wife.) 
 residence of children, grandchildren, and other relatives . . . 406 
 nationality and religion of wife, form of marriage ceremony, etc. 407 
 • place of marriage and residence of wife as evidence of quasi-na- 
 
 tional domicil 408 
 
 betrothal 409 
 
 residence and engaging in business 410 et seq. 
 
 mode of living 414 et seq. 
 
 residence in hotels and temporary lodgings 415 
 
 residence in leased houses or lodgings . 416 
 
 ownership, purchase and sale of dwelling-house or other real 
 
 estate 417^19 
 
 location of personal property 420 
 
 double residence 421-425 
 
 place of death . 426 
 
 place of burial 427 
 
 purchase of burial-place . . 428-430 
 
 sale of burial-place ... . . . 431 
 
 naturalization 432-434 
 
 voting, etc 435-441 
 
 (See also Voting.) 
 
 payment, etc., of personal taxes . . 442,443 
 
 (See also Taxes.) 
 
 holding office .... . 444 
 
 (See also Office.) 
 
 treatment by public officers 445 
 
 jury service 446 
 
 militia service 447 
 
 taking part in town meetings 448 
 
 declarations, oral and written, descriptions in legal documents, 
 
 etc 449 et seq. 
 
 (See Declarations.) 
 party whose domicil is in question may himself testify with 
 regard to his intent 467 
 
 F. 
 
 FACT AND INTENTION. 
 
 (See Animus et Factum.) 
 FA CTUM, 
 
 requisite for the acquisition of a domicil of choice is complete 
 transfer of bodily presence from the old place of abode to the 
 new 127 et seq. 
 
INDEX. 581 
 
 FACTUM — continued. Section 
 
 a domicil of choice cannot be acquired in itinere 130-133 
 
 requisite for reverter of domicil of origin is quitting the place 
 
 of acquired domicil 204 
 
 transit to domicil of origin need not be direct 206 
 
 simple and easy to prove 364 
 
 transfer of bodily presence from one place to another will not 
 alone constitute domicil, intention must concur 125, 126, 135, 
 
 136, 182 
 FAMILY, RESIDENCE OF 
 
 as evidence of domicil 401 et seq. 
 
 (See also Wife.) 
 FATHER, 
 
 relation of, to domicil of infant child . 235 et seq. 
 
 (See also Infant.) 
 
 to domicil of insane major child 267, 268 
 
 (See also Non Compos.) 
 FORM, 
 
 of will as evidence of domicil ... 466 
 
 FORMAL DECLARATIONS OF DOMICIL. 
 (See Declarations.) 
 
 FOREIGN ATTACHMENTS, 
 
 relation of domicil to ... 49 
 
 FORUM ORIGINIS. 
 
 (See Domicil of Origin.) 
 FOUNDLING, 
 
 domicil of origin of, prima facie, where he is found . . 105, 228, 362 
 but not conclusively 105, 228, 362 
 
 FRANCE, 
 
 domicil of foreigners in ... . 341 et seq. 
 
 Article 13 of the Code Civil 341 
 
 the difficulty attending the subject largely one of method . 342 
 
 various opinions of French text-writers 343-347 
 
 (1) that a foreigner cannot establish a domicil in France 
 
 even with authorization 343 
 
 (2) that a foreigner may establish a domicil there only with 
 
 authorization 344, 345 
 
 (3) that a foreigner may establish a domicil there without 
 
 authorization ■ • 346, 347 
 
 decisions of the French courts 348 
 
 , English cases 349-354 
 
 Collier v. Rivaz 349 
 
 Anderson v. Laneuville ... .... .... 350 
 
 Bremer v. Freeman . 351 
 
 Hodgson V. De Beauchesne 352 
 
 Hamilton v. Dallas ... . 353 
 
 results of the English cases 354 
 
582 INDEX. 
 
 FRANCE — continued. Section 
 
 American cases .... . . 355, 356 
 
 Dupuy V. Wurtz 3.55 
 
 Tucker v. Field 355, note 
 
 Harral v. Harral 356 
 
 are the consequences of authorization personal, or do they ex- 
 tend to wife and family ? 357 
 
 FREEDOM OF CHANGE. 
 
 (See Rules.) 
 
 G. 
 
 GRANDPARENT, 
 
 when grandchild may acquire the domicil of 245 
 
 GUARDIAN, 
 
 relation of, to domicil of infant ward .... . 249 et seq. 
 
 (See also Infant.) 
 to domicil of insane ward ... . . 265, 266 
 
 (See also Non Compotes.) 
 GUARDIANSHIP, 
 
 relation of domicil to 34 
 
 H. 
 
 HABITANCY. 
 
 "(See Inhabitancv.) 
 
 '' HABITATIO ASSIDUA," 
 
 of the Civilians, equivalent to '"residence"' 377 
 
 as evidence of domicil .... ... 377 
 
 HOME AND DOMICIL, 
 
 similarity .... .... . . .... .70 
 
 differences . . ... 71 
 
 home the fundamental idea of domicil . . 72 
 
 HOMESTEAD AND OTHER EXEMPTIONS, 
 
 relation of domicil to 56 
 
 HOTEL DES INVALIDES, 
 
 forms the domicil of its inmates 271 
 
 HOTELS, 
 
 residence in, as evidence of domicil 415 
 
 HOUSE, LEASED, 
 
 residence in, as evidence of domicil . 416 
 
 (See also Dwelling-house.) 
 HUSBAND AND WIFE. 
 
 (See Wife and Marriage.) 
 
 HUSBAND, "DOMICIL OF, 
 
 not controlled by wife 404 
 
INDEX. 683 
 
 I. 
 
 IDIOTS AND LUNATICS. Section 
 
 (See NoN Compotes.) 
 INABILITY TO RETURN, 
 
 to former place of abode after a voluntary absence cum animo 
 revertendi prevents a change of domicil . 130 
 
 INFANT, 
 
 domicil of origin of legitimate 228 
 
 illegitimate 228 
 
 posthumous 228 
 
 foundling .... 228 
 
 domicil of legitimated 228 
 
 domicil of, cannot be changed by his own act 229 
 
 under the Scotch law a child who has reached the age of puberty 
 
 may change his domicil 229, note 
 
 Roman law 230 
 
 the rule of disability sometimes stated in this country as appli- 
 cable only to uuemancipated minors 231 
 
 is there any exception in favor of the power of a married minor ? 232 
 
 other exceptions suggested 233 
 
 emancipated minor an exception under the French Code Civil . 234 
 domicil of a minor follows that of his father during the life of 
 
 the latter 235 
 
 even though they dwell apart 233 
 
 possible exception 237 
 
 upon the death of the father domicil of infant follows that of 
 
 his mother 238 et seq. 
 
 British authorities : Potinger v. Wightman 239 
 
 American authorities 240 
 
 does domicil of infant necessarily follow that of his widowed 
 
 mother, or may she change hers without affecting his? . . 241 
 is the qualification that the mother must act without fraud a 
 
 valid one ? 242, 243 
 
 the power of the mother does not extend beyond widowhood . 244 
 upon the remarriage of their mother infant children retain the 
 
 domicil which they have at that time 244 
 
 step-father cannot change the domicil of his step-children . . 244 
 
 domicil of illegitimate children 244 a 
 
 upon the death of both parents an infant may acquire the domi- 
 cil of a grandparent 245 
 
 but in such case he must reside with the grandparent . . 245 
 
 domicil of apprentice 246 
 
 adopted child 247, 248 
 
 power of guardian to change the domicil of minor ward . 249 et seq. 
 
 a vexed question , . . . 249 
 
 continental authorities in the affirmative 250 
 
 in the negative 251 
 
584 INDEX. 
 
 INFANT — continued. Section 
 
 English text-writers . 252 
 
 American text-writers ... . 253 
 
 no direct decision in England 254 
 
 Potinger v. Wightman not in point, althouga by many 
 
 erroneously supposed to be 25i 
 
 American decisions 
 
 natural guardian may change the domicil of his infant 
 
 ward 255 
 
 domicil of guardian not necessarily that of his infant 
 
 ward 256 
 
 guardian may change the municipal domicil of his 
 
 infant ward 257 
 
 power to change national or quasi-nationid domi- 
 cil . . 258 ei seq. 
 
 cases in the affirmative 258 
 
 cases in the negative . 259 
 
 general results of the American cases 260 
 
 general reasons against the power of guardian to 
 change the national or juasi-national domicil of his 
 infant ward 261-2G3 
 
 INHABITANCY AND DOMICIL 76 
 
 INSANE PERSONS, DOMICIL OF. 
 
 (See NoN Compotes.) 
 INTENTION, 
 
 (See Animus.) 
 to remain. 
 
 (See Animus Manendi.) 
 to change domicil not sufficient without actual removal 125, 126, 182 
 no matter how strong the intention may be . . . . 125,120 
 
 or how solemnly expressed 125 126 
 
 intention must concur with act .... 125 ef sey, 135, 136, 182 
 
 and must clearly appear . 136 
 
 person whose domicil is in question may testify to his intention 467 
 
 the requisite, complex and difficult to prove . 365 
 
 how provable . 365 ei seq. 
 
 INTERNATIONAL LAW, PRIVATE, 
 
 uses of domicil in 28 et seq. 
 
 INTERNATIONAL LAW, PUBLIC, 
 
 uses of domicil in 26 27 
 
 national character ... .... ... 26 
 
 naturalization 27 
 
 INTESTACY. 
 
 (See Succession.) 
 INVALIDS, 
 
 <^°ni'"lof lil, 287 et .■>eq. 
 
INDEX. 585 
 
 ITINERE, Section 
 
 domicil cannot' be changed in 130 ef sey. 
 
 contrary view maintained by some in event of death of the party 
 
 during the journey 128, 129, 193, 194, 200 
 
 exception in favor of reverter of domicil of origin . 127, 190 et seq. 
 a fortiori, no change takes place when the territorial limits of the 
 
 old domicil have not been passed 132 
 
 J. 
 
 JUDICIAL CITIZENSHIP, 
 
 dependent upon domicil 48 
 
 JUDICIAL PROCEEDINGS, 
 
 descriptions in, as evidence of domicil 464 
 
 JUDGMENTS, FOREIGN AND INTERSTATE, 
 
 relation of domicil to ... . 47 
 
 JURISDICTION, 
 
 in general 47 
 
 of Federal courts in controversies between citizens of different 
 
 States 48 
 
 of Federal courts in bankruptcy . . ... 48 
 
 in foreigii attachments 49 
 
 in divorce ... 39 
 
 in the Roman law depended mainly upon domicilium .... 9 
 
 JURY SERVICE, 
 
 liability to, depends upon domicil 52 
 
 as evidence of domicil 446 
 
 JUS CIVITATIS. 
 
 (See Citizenship.) 
 
 L. 
 
 '' LARES," 
 
 equivalent to wife ... 58-60, 401 
 
 LAWS, LOCAL. 
 
 (See Local Laws and Customs.) 
 
 LAWSUIT, 
 
 residence for the purpose of conducting, sufficient, according to 
 
 Lord Stowell 386 
 
 contra, according to the generally received view ...... 387 
 
 LEACH, SIR JOHN, 
 
 dictum of, in IMunroe v. Douglas 128 et neq. 
 
 followed by Wood, V. C, in Forbes v. Forbes 129 
 
 and by Wharton and Westlake 129 
 
 criticised 128 note 3, 129 note 2, 193, 194 
 
586 INDEX. 
 
 LEASED HOUSES, Section 
 residence in, as evidence of domicil 416 
 
 LEGACY TAXES. 
 
 (See Taxes.) 
 
 LEGITIMACY AND LEGITIMATION, 
 
 relation of domicil to 30, 31 
 
 LENGTH OF RESIDENCE, 
 
 (See Time.) 
 
 not necessary to constitute domicil 134 
 
 if intention be present, domicil vests instantly . . 134, 179 
 
 not sufficient to constitute domicil if intention be absent . 135, 136 
 as evidence of intention ... 382 et seq. 
 
 LIMITATION OF ACTIONS, 
 
 relation of domicil to . ... .50 
 
 LOCAL LAWS AND CUSTOMS, 
 
 great number of, formerly existing on the continent ... 14 
 
 gave rise to the application of the principle of domicil to the 
 solution of questions of conflict ... .... . 15 
 
 LOCALITY, RESIDENCE IN A DEFINITE, 
 
 not necessary for acquisition of domicil . . 133 
 
 LODGINGS, 
 
 temporary residence in, as evidence of domicil . . . . 415 
 
 leased houses or, residence in, as evidence of domicil . . 416 
 LUNATICS, DOMICIL OF. 
 
 (See NoN Compotes.) 
 
 M. 
 
 MAJORITY AND MINORITY, 
 
 relation of domicil to . . 35, 195 
 
 MARRIAGE, , 
 
 validity of, by what law determined ... .... 36, 195 
 
 . 36, 195 
 
 . 36, 195 
 
 37,38 
 
 . . 37 
 
 39 
 
 . 37a 
 
 . 407 
 
 . . 408 
 
 formal requirements 
 
 capacity for . . 
 
 legal effects of ... 
 
 mutual property rights of husband and wife . . 
 capacity of married women to make valid contracts 
 
 construction of marriage contracts 
 
 form of marriage ceremony as evidence of domicil 
 place of, relation of, to juasi-national domicil 
 
 MARRIED MINOR. 
 
 (See Infant.) 
 MARRIED WOMAN. 
 
 (See Wife.) 
 MATRIMONIAL DOMICIL 37, 3r,( 
 
INDEX. 587 
 
 MILITIA SERVICE, Section 
 
 liability to, in many States, depends upon domicil 52 
 
 as evidence of domicil 447 
 
 MINOR. 
 
 (See Infant.) 
 MINORITY. 
 
 (See Majority.) 
 
 MODE OF LIVING, 
 
 as evidence of domicil 414 
 
 MOTHER, 
 
 relation of, to domicil of her infant child 238 et seq. 
 
 (See also Infant.) 
 
 MOTIVE FOR CHANGE OF DOMICIL, 
 
 immaterial if the proper intention be present 142 
 
 change of domicil not prevented because residence is chosen in 
 
 order to escape taxation . . 142 
 
 or other burdens 142 
 
 or to give jurisdiction to the Federal or other courts . . . 142 
 
 compulsion and, distinction between 140, 141 
 
 preference for a particular climate on account of health does 
 
 not prevent a change of domicil ... 141 
 
 MOVABLES, 
 
 assignments of ... iO et seq. 
 
 assignments of particular .... 40 
 
 general assignments of 37, 41 et seq. 
 
 (1) by marriage . . . . .... . . . . 37 
 
 (2) by bankruptcy . . . 41 
 
 (3) by death 42-45 
 
 {A) intestate succession 42 
 
 administration . .... 45 
 
 (B) testamentary administration 43-45 
 
 (a) validity of wills . . . . 43 
 
 (a) capacity of testator . . .... 43 
 
 (b) formal requirements 43 
 
 (c) validity of particular provisions ... 43 
 
 (b) construction of wills 44 
 
 (c) probate . 45 
 
 MUNICIPAL BURDENS, 
 
 subjection to, in the Roman law dependent upon origo and 
 dondcilium, 8 
 
 MUNICIPAL DOMICIL, 
 
 generally speaking, every person has a 86,87,181 
 
 every person receives a municipal domicil of origin .... 181 
 
 once acquired continues until another is acquired 181 
 
 not the subject of reverter ' . . 207 
 
588 INDEX. 
 
 MUNICIPAL BOMICIL — continued. Section 
 
 change of 180 et seq. 
 
 more easily changed than national or j'uast-Dational domicil 180 
 presumption against change of ... . . ... 181 
 
 181 
 182 
 182 
 182 
 182 
 182 
 
 burden of proof on him who asserts it 
 
 factum et animus necessary for a change of . . . . 
 
 mere absence does not destroy .... 
 
 nor temporary presence at a place constitute .... 
 
 mere intention insufficient to change 
 
 act must accompany intention . 
 
 the necessary act or factum is complete transfer 6i bodily 
 
 presence 182 
 
 cannot be changed in itinere .... . . . . 182 
 
 the requisite animus . . 183 et seq. 
 
 includes (1) capacity to choose . ] 83 
 
 (2) freedom of choice 1 83 
 
 (3j actual choice 183 
 
 animus non revertendi 184 
 
 not always necessary for a change of municipal domicil . 184 
 
 animus manendi .... ]85 
 
 necessary for a change of municipal domicil .... 185 
 
 not intention " to remain always " 185 
 
 intention to remain " for an indefinite time " 185 
 
 negative view of; " residence in a place without any present 
 
 intention of removing therefrom " 186 
 
 intention to make the new place of abode " home " . . . 187 
 how far contingent animus manendi will suffice, not clear . 188 
 
 double residence ... 189 
 
 less proof required to show change of municipal domicil than 
 
 change of national or juosi-national domicil 362 
 
 (See also Domicil.) 
 MUNICIPAL LAW, 
 
 uses of domicil in ... . 28 et seq. 
 
 MUNICIPAL ORGANIZATION OF THE ROMAN WORLD 1 
 MUNROE V. DOUGLAS, 
 
 dictum of Sir John Leach in (death in itinere) 128 et seq. 
 
 followed by Wood, V. C, in Forbes v. Forbes 129 
 
 and by Wharton and Westlake 129 
 
 criticised 128 note 3, 129 note 2, 193, 194 
 
 N. 
 NAME, SPELLING OF, 
 
 may be evidence of domicil 48q 
 
 NATIONAL CHARACTER, 
 
 how far dependent upon domicil og 337 
 
 cases j)f, to be used with great caution as authorities upon the ' 
 general subject of domicil ... ''6 887 
 
INDEX. 589 
 
 NATIONAL DOMICIL, Section 
 
 distinguished from (^uasi-national and municipal domicil ... 77 
 more difllcult to change than ^uasi-national or municipal 
 
 domicil 123 
 
 hence stronger proof required to show a change of the former 
 
 than of either of the latter 362 
 
 (See also Domicil.) 
 
 NATIONALITY, POLITICAL, 
 
 as the basis of personal law 12, 16 
 
 change of, not necessary for change of domicil . 144 et seq., 195, 432 
 
 NATIVE DOMICIL. 
 
 (See Domicil of Origin.) 
 NATIVITAS. 
 
 (See Origo.) 
 NATURAL DOMICIL. 
 
 (See Domicil of Origin.) 
 NATURALIZATION, 
 
 domici^ usually necessary for 27, 432 
 
 not necessary for the acquisition of domicil . . . 144 ei seq., 432 
 
 strong evidence of domicil 432-434 
 
 opinions of the continental jurists 433 
 
 British and American authorities 434 
 
 NON COMPOTES ^Qi et seq. 
 
 persons of unsound mind usually deemed incapable of changing 
 
 their domicil . 264 
 
 but not every degree of mental unsoundness will render them 
 
 thus incapable 264 
 
 relation of guardian to the domicil of his insane wai-d . . . 265 
 
 (a) his domicil not necessarily Ijhat of his ward 265 
 
 (6) he appears to have the power to change his ward's munici- 
 pal domicil 265 
 
 (c) his power to change his ward's national or ^uasi-national 
 
 domicil, to say the least, is doubtful 265 
 
 French law 266 
 
 relation of the father to the domicil of his insane major child 267, 268 
 (o) where the latter becomes insane after attaining his major- 
 ity 267, 268 
 
 (6) where he continues insane from infancy 267, 268 
 
 domicil of insane persons not changed by removal to asylum . 269 
 
 O. 
 
 OFFICE, 
 
 eligibility to, depends largely on domicil 54 
 
 holding local, evidence of domicil 444 
 
 but not conclusive 444 
 
 absence of right to hold, does not necessarily indicate absence 
 
 ofdomioU , . 444 
 
590 INDEX. 
 
 OFFICERS, PUBLIC, Section 
 
 treatment by, as evidence of domicil 445 
 
 domicil of. 
 
 (See Public Civil Officers, Soldiers, Sailors, Ambassadors, 
 and Consuls.) 
 
 ONUS. 
 
 (See Burden of Proof.) 
 
 ORIGIN, DOMICIL OF. 
 
 (See Domicil of Origin.) 
 
 ORIGINIS, FORUM. 
 
 (See Domicil of Origin.) 
 
 ORIGO, OR MUNICIPAL CITIZENSHIP IN THE ROMAN 
 
 LAW Zetseq. 
 
 arose in four ways ... 3 
 
 (1) by birth (origo proper, or nativitas) 3 
 
 legitimate child usually followed the citizenship of his 
 
 father 3 
 
 exception in certain cities 3 
 
 illegitimate child followed the citizenship of his mother . 3 
 
 (2) by adoption 3 
 
 emancipation destroyed citizenship acquired by adoption 3 
 
 (3) by manumission .... . . . . .3 
 
 (4) by alleotion . . 3 
 
 could be extinguished only with the consent of the municipal 
 
 authorities . . 4 
 
 of the wife suspended during marriage . . 4 
 
 so too of the senator and soldier during the time of his service . 4 
 a person might at the same time possess citizenship in several 
 
 towns ... . . 4 
 
 or might be without any ... .... 4 
 
 not domicil of origin . . . ... .6, 104 
 
 ORIGO AND DOMICILIUM IN THE ROMAN LAW . 2 et seq. 
 
 consequences of 7 et seq. 
 
 subjection to (a) municipal burdens .... ... 8 
 
 (J) local magistrates {forum) 9 
 
 (e) personal law . 10 
 
 OWNERSHIP OF DWELLING-HOUSE OR OTHER REAL 
 ESTATE, 
 
 as evidence of domicil 417 
 
 P. 
 
 PARTICULAR PERSONS, DOMICIL OF. 
 (See Wife, Infant, Non Compotes, Paupers, Prisoners, Exiles, 
 Rrfugeks, Invalids, Soldif.rs, Sailors, Public Civil Offi- 
 cers, Ambassadors, Consuls, and Students. 
 
INDEX. 691 
 
 PATERNAL DOMICIL. Section 
 
 (See DoMiciL or Origin.) 
 
 PATERNAL POWER 33 
 
 PAUPERS, 
 
 domicil of, not changed by removal to poor-house . . . 270 
 
 PAUPER SETTLEMENT. 
 
 (See Settlement.) 
 
 PERSONAL LAW, 
 
 dependent to some extent upon origo and domicitium in the 
 
 Roman law ... 10 
 
 but mainly upon Roman citizenship 12 
 
 in the Middle Ages, and to a small extent in modern times, 
 
 upon race descent 12 et seq. 
 
 in modern times, mainly upon domicil 12 
 
 although to some extent upon political nationality ... 12 
 
 PERSONAL PROPERTY, 
 
 location of the bulk of, as evidence of domicil .... . 420 
 
 (See also Movables.) 
 
 PERSONS, PARTICULAR, DOMICIL OF. 
 
 (See Particular Persons.) 
 
 PLACE OF BIRTH. 
 
 (See Birth.) 
 PLACE OF BURIAL. 
 
 (See Burial.) 
 
 PLACE OF BUSINESS. 
 
 (See Business.) 
 
 PLACE OF DEATH. 
 
 (See Death.) 
 
 PLACE OF MARRIAGE. 
 
 (See Marriage ) 
 
 PLACE OF RESIDENCE. 
 
 (See Residence.) 
 
 POLITICAL NATIONALITY. 
 
 (See Nationality.) 
 
 POSTHUMOUS CHILDREN, DOMICIL OF 105, 228 
 
 PRESENCE AT A PLACE, 
 
 evidence of domicil there .... 375 
 
 but not conclusive . . . . . . .... 376 
 
 PRESUMPTIONS, 
 
 against a change of domicil .... 115, 122 et seq., 151, 181, 362 
 
 not overcome by merely showing absence 151 
 
 abandonment must clearly appear 151 
 
 (See Change of Domicil.) 
 
592 > INDEX. 
 
 PRESUMPTIONS— cona'nuei. Section 
 
 particularly strong against change of domicil of origin 
 
 115 et seq., 122, 380 
 but this presumption is modified by circumstances . 116, 117 
 (See Domicil of Origin.) 
 that a man dwelling apart from his wife and family does not 
 
 intend to abandon them . . 401 
 
 that a man is domiciled where his wife and family reside 401 el seq. 
 
 but this is not conclusive 404, 405 
 
 of domicil from long residence . . . 389 
 
 (See also Residence and Time.) 
 
 against reverter of domicil of origin ... 203 
 
 that the residence of certain persons is temporaiy. 
 (See Ambassador, Consul, Exile, Prisoner, Public Civil 
 Officer, Refugee, Soldier, and Student.) 
 (See also Evidence and Burden of Proof.) 
 
 PRISONER, 
 
 does not necessarily acquire a domicil at the place of his im- 
 prisonment . . ' . . 272 
 
 but may if he so desire ... 273 
 
 domicil of prisoner for life .... .... 274 
 
 transported convict ... 275 
 
 relegatus in the Roman law 276 
 
 PRIZE CASES, BRITISH, 
 
 the only authority for the doctrine of Udny v. Udny .... 198 
 not safe as authorities upon the general subject of domicil 26, 198, 387 
 
 PROBABILES CONJECTURJE, 
 
 to be resorted to for the determination of domicil . . . 371 
 
 PROBATE DUTIES 46 
 
 PROBATE OF WILLS, 
 
 relation of domicil to jurisdiction for . 45 
 
 PROOF, BURDEN OF. 
 
 (See Burden of Proof.) 
 
 PROOF OF CHANGE OF DOMICIL RELATIVE, 
 
 each case must be determined upon its own circumstances 366 et seq. 
 
 PROOF, RELATIVE AMOUNT OF, 
 
 required to show change of national, ^uasi-national, and muni- 
 cipal domicil 362 
 
 acquisition of domicil of choice and reverter of domicil 
 of origin 362 
 
 PUBERTY, 
 
 under the Scotch law, child who has reached the age of, may 
 change his domicil at pleasure 229, note 3 
 
 PUBLIC CIVIL OFFICERS, 
 
 life functionaries 308, 309 
 
INDEX. 693 
 
 PUBLIC CIVIL OFFICmiS — continued. Section 
 
 holders of temporary or revocable oflBces or employments 310 et seq. 
 do not necessarily acquire domicil at the place where their 
 
 duties are to be performed 310-313 
 
 Government employees at Washington 313 
 
 holder of a temporary or revocable office may acquire domicil 
 
 ■where his duties are to be performed 314 
 
 public officer remaining after the expiration of his office . . . 315 
 provisions of American State constitutions with respect to 
 voting 316 
 
 PURCHASE OF BURIAL-PLACE, 
 
 as evidence of domicil 428-430 
 
 PURCHASE OF DWELLING-HOUSE, 
 
 or other real estate, as evidence of domicil 419 
 
 Q. 
 
 QUASI-^ATWSAl, DOMICIL, 
 
 distinguished from national and municipal domicil ... 77 
 
 the subject of reverter 207 
 
 change of, less proof required to show, than to ehow change of 
 
 national domicil 362 
 
 stronger proof required to show, than to show change of 
 
 municipal domicil 362 
 
 (See also Domicil.) 
 
 R. 
 
 RACE DESCENT AS THE BASIS OF PERSONAL LAW 12 et seq. 
 
 REAL ESTATE, 
 
 ownership of, as evidence of domicil 417 
 
 sale of, as evidence of domicil 418 
 
 purchase of, as evidence of domicil 419 
 
 REFUGEE, 
 
 domicil of 279 et seq. 
 
 political . , .... 280 et seq. 
 
 fugitive fi-om the horrors and dangers of war 284 
 
 RESIDENCE, 
 
 and domicil 73 ci seq. 
 
 attempts to define 74, 377 
 
 used in different senses 73 
 
 iu American legislation generally, although not always, means 
 
 domicil 75 
 
 mere change of, not sufficient to constitute a change of domicil 
 
 125 et seq., 135, 136, 182 
 
 no length of, sufficient to constitute domicil 135, 136 
 
 intention must concur . . . ; 125 et seq., 135, 136, 182, 380 
 
 38 
 
594 INDEX. 
 
 'RESlD'ETifCE — continued. Section 
 
 no length of, necessary to constitute domicil 134 
 
 domicil vests instantly if the proper intention be present 
 
 131, 179 
 
 in a definite locality not necessary for a change of domicil . . 133 
 
 as evidence of domicil . "' ' *' ^^1' 
 
 prima facie evidence of domicil "'° 
 
 but not conclusive . • ■ 377 
 
 by itself equivocal as evidence of domicil ... . . 377, 379 
 
 decisive as to the necessary /aeium 3/9 
 
 but equivocal as to the necessary animus .... ... 379 
 
 length of. 
 
 (See Time.) 
 
 and engaging in business as evidence of domicil 410-412 
 
 place of, preferred to place of business as domicil . . . . 413 
 in hotels or temporary lodgings as evidence of domicil . . . 41;j 
 
 in leased houses or lodgings as evidence of domicil 416 
 
 in several places. 
 
 (See DoiTBLE Residence.) 
 national character gained by, ceases by abandonment . . 198, 194 
 of wife and family. 
 
 (See Wife.) 
 of children. 
 
 (See Children.) 
 
 KETURN, INABILITY TO, 
 
 after voluntary absence from former place of abode cum animo 
 revertendi, prevents a change of domicil .' 139 
 
 REVERTER OF DOMICIL, 
 
 " domicil of origin reverts easily " .... 1\9 et seq., l^d et seq. 
 slighter circumstances required to show re-acquisition of domicil 
 
 of origin than acquisition of domicil of choice 119, 362 
 
 the principle, however, a relative one . . 120 
 
 Story's statement of the doctrine of reverter 191 
 
 substantially that adopted by all American jurists 201 
 
 being in itinere to domicil of origin necessary to regain it . . . 191 
 
 British doctrine otherwise 192 et seq. 
 
 Udny V. Udny, doctrine of, stated 192 et seq. 
 
 doctrine of , criticised . .■ 112, 196 et seq. 
 
 remarks of Lord Hatherley in 193 
 
 remarks of Lord Chelmsford in 194 
 
 remarks of Lord Westbury in . . 195 
 
 upon abandonment simpHciter of acquired domicil, domicil of 
 
 origin simpUciter reverts (Udny v. Udny) 192 et seq. 
 
 domicil of origin cannot be obliterated 195 
 
 is put in abeyance on acquisition of domicil of choice (per 
 
 Lord Westbury) 195 
 
 Story's statement of the doctrine of reverter criticised in Udny 
 
 V. Udny by Lord Hatherley .193 
 
 by Lord Chelmsford 194 
 
 by Lord Westbury 195 
 
INDEX. 595 
 
 REVERTER OF BOUICIL — continued. Section 
 
 doctrine of Udny v. Udny not drawn from the Civilians . . . 196 
 
 rests upon the British Prize Cases as far as it rests upon any 
 
 authority 198 
 
 tinctured by the doctrine of perpetual allegiance . . ll'J, 198 
 
 objections on principle to 199 
 
 Westlake's apparent dissent from 200 
 
 he assumes domioil of origin (for the purpose of reverter) to 
 be the last domioil which the person had prior to becoming 
 
 an independent person 200 
 
 American doctrine of reverter, — commencement of transit to 
 
 place of origin with intention to remain there necessary . . 201 
 some American dicta apparently support the doctrine of Udny 
 
 V. Udny 201, note 2 
 
 doctrine of Udny v. Udny not held on the Continent .... 202 
 
 reverter of domicil not held by continental authorities . . 202, note 
 
 reverter will not be presumed 203 
 
 burden of proof on him alleging it 203 
 
 but slighter proof will be required to show reverter than to show 
 
 acquisition of domicil of choice 3G2 
 
 mere intention to return to domicil of origin no reverter . . . 203 
 
 nor is return without abandonment of acquired domicil . . . 203 
 requisite factum for reverter is quitting the place of acquired 
 
 domicil . 20i 
 
 requisite animus is at least abandonment of place of acquired 
 
 domicil 205 
 
 ■which must clearly appear 205 
 
 contingent animus non revertendi not sufficient 205 
 
 abandonment must be complete and final . . 205 
 
 a distant possibility, however, of return will not prevent 
 
 reverter 205 
 
 transit to place of domicil of origin need not be direct . . . 20G 
 
 juosi-national domicil the subject of reverter ... . . 207 
 
 otherwise as to municipal domicil ... 207 
 
 acquired domicil not the subject of reverter 208 
 
 ROMAN^ LAW, DEFINITIONS OF DOMICIL IN, 
 
 mainly formulm of evidence •. . . 374 
 
 (See also Definitions.) 
 
 RULES, GENERAL 78 et seq. 
 
 (1) every person must have a domieil somewhere 79 et seq., 193, 195 
 
 the Roman law and the Modern Civilians 79, 80 
 
 British and American authorities .....'... 81-83 
 
 gypsies and vagabonds .... . . 84 
 
 French jurists • 85 
 
 municipal domicil . . 86, 87 
 
 (2) no person can at the same time have more than one 
 
 domicil 88 et seg'., 193 
 
 Roman law S8 
 
 French jurists . 89 
 
596 ' INDEX. 
 
 RULES, GENERAL — continued. Section 
 
 the necessity of unity of domicil 90 
 
 British and American authorities 91 ei seq. 
 
 remarks of Lord Alvanley in Somerville v. Somerville, and 
 Lord Loughborough in Ommanney v. Biugham ... 93 
 
 " domicil " and " principal domicil " 94 
 
 different domicils for different purposes 95, 96 
 
 municipal domicil 97 
 
 (3) every person who is sui Juris and capable of controlling 
 his personal movements may change his domicil at 
 
 pleasure 98 et seq., 193 
 
 Roman law . 98 
 
 modern jurists 99 
 
 British and American authorities . .... . . 100 
 
 municipal domieil 101 
 
 S. 
 SAILORS, 
 
 in the war marine, domicil of . : . . . 297 et seq. 
 
 (See also Soldiers.) 
 in the merchant marine, domicil of . . 304-306 
 
 SALE OF BURIAL-PLACE, 
 
 as evidence of domicil .... 431 
 
 SALE OP DWELLING-HOUSE, 
 
 as evidence of domicil . . . . . 418 
 
 SCOTT, SIR WILLIAM, 
 
 strong leaning of, in favor of captors 26, 387 
 
 SEPARATION, DEED OF. 
 
 (See Deed of Separation.) 
 
 SETTLEMENT UNDER THE POOR-LAWS, 
 
 relation of domicil to 55 
 
 " SETTLING," 
 
 a word nearly describing the act of acquiring a domicil 162, 167, 193 
 SU^ENCE, 
 
 sometimes evidence of domicil 465 
 
 SLEEPING-PLACE, 
 
 important in determining domicil 413 
 
 SOLDIERS, 
 
 ^omicil of 297 et seq. 
 
 Roman law . . . . _ 297 
 
 French jurists ... 298 
 
 does a soldier necessarily become domiciled within the territory 
 of the sovereign whom he serves ? 299 300 
 
 can a soldier acquire a foreign domicil?. . . . . 30l' 302 
 
 Hodgson V. De Beauchesne ' 301 
 
 East India cases _ 3q2 
 
INDEX. 597 
 
 SOLDIERS — continued. Section 
 juosi-national and municipal domicil not affected by military 
 service 303 
 
 SOLDIERS' HOME, 
 
 may constitute the domicil of its inmates 271 
 
 SPELLING OF NAME. 
 
 (See Name.) 
 
 STATUS, 
 
 political and civil, distinguished by Lord Westbury 195 
 
 civil, how determined 29 €f seq. 
 
 largely dependent upon domicil 29e<seg., 195 
 
 various phases of 30 ei seq. 
 
 (See Legitimacy, Legitimation, Adoption, Guardianship, Ma- 
 jority AND Minority, Paternal Power, Marriage.) 
 
 STATUTES, 
 
 real and personal 15 
 
 STEP-FATHER, 
 
 cannot change the domicil of his infant step-child 244 
 
 stowell, lord. 
 
 (See Scott, Sir William.) 
 
 STUDENT, 
 
 domicil of 325 et seq. 
 
 does not necessarily gain a domicil at the place of his studies . 325 
 
 but may do so if the proper animus be present 325 
 
 the presumption is, however, against his gaining a domicil 
 
 there 325 
 
 Roman law 326, 327 
 
 decennial residence 326, 827 
 
 domicil of student as viewed in this country 328-339 
 
 Massachusetts cases 329-333 
 
 Opinion of the Judges 329-331 
 
 Granby v. Amherst 332 
 
 Putnam v. Johnson 333 
 
 Fry's Election Case (Pa.) 334, 335 
 
 Sanders ». Getchell (Me.) 336, 337 
 
 the principles of the American cases applicable alike to all 
 
 grades of domicil 338 
 
 residence of students for the purpose of voting under the 
 
 American State Constitutions 339 
 
 presumption in favor of the acquisition of a domicil by a stu- 
 dent who remains after the completion of his studies . . . 340 
 
 SUCCESSION, PERSONAL, RELATION OF DOMICIL TO 42-45 
 
 A. intestate succession . . . . 42, 195 
 
 administration .... .... 45 
 
 B. testamentary succession ... . .... 43-45, 195 
 
 (a) validity of wills 43 
 
598 INDEX. 
 
 SUCCESSION, PERSONAL, ETC. — continued. Section 
 
 (1) capacity of testator 43 
 
 (2) formal requirements 43 
 
 (3) validity of particular provisions 43 
 
 (J) construction of wills 44 
 
 (c) probate 45 
 
 succession and" legacy duties 46 
 
 SUFFRAGE. 
 
 (See Voting.) 
 
 T. 
 
 TAXES, 
 
 personal, assessed only at place of domicil 51 
 
 on immovable property at place where it is located 51 
 
 on tangible movable property either at place of location or of 
 
 domicil 51 
 
 voluntary payment of personal taxes strong evidence of domicil 442 
 
 contra payment under protest 442 
 
 omission or refusal to pay 443 
 
 legacy and inheritance taxes 46 
 
 TIME OR LENGTH OF RESIDENCE, 
 
 as evidence of domicil 382 et seq. 
 
 strong evidence of domicil 370, 382 et seq. 
 
 but not conclusive . . 382 et seq. 
 
 in the Roman law . . 383-385 
 
 residence for ten years offered in the Roman law a rule of pre- 
 sumption 383-385 
 
 but which was not conclusive . 383-385 
 
 the grand ingredient in constituting domicil (Lord Stowell, in 
 
 The Harmony) .386 
 
 criticism of Lord Stowell's remarks 387, 388 
 
 time or length of residence as evidence of domicil, Dr. Lush- 
 
 ington on, in Hodgson v. De Beauchesne 389 
 
 Kindersley, V. C, inCockrell V. Cockrell 390 
 
 Poland, J., in Hulettw. Hulett 391 
 
 Story, J. , in the Ann Green . . 392 
 
 cases illustrative of the effect of length of residence upon 
 
 domicil 393-399 
 
 result of the decisions 400 
 
 no length of residence necessary to constitute domicil . . 134, 179 
 domicil vests instantly upon the concurrence of act and inten- 
 tion 134, 179 
 
 TOWN MEETINGS. 
 
 attending, and taking part in the discussion of public affairs, 
 evidence of domicil 448 
 
INDEX. 599 
 
 TRANSFER OF BODILY PRESENCE, Section 
 from the old place of abode to the new, necessary for the estab- 
 lishment of domicil 127 et seq. 
 
 (See also Factum.) 
 
 U. 
 
 USES OF DOMICIL 25 et seq. 
 
 V. 
 
 VOTING, 
 
 right of suffrage in the United States depends on domicil 53, 435 
 
 important evidence of domicil 435 
 
 but not conclusive ....... 435 
 
 offering to vote evidence of domicil 436 
 
 refusing to vote 487 
 
 failure to vote 438 
 
 absence of the right to vote 439 
 
 English cases . 440 
 
 French authorities ... 441 
 
 W. 
 
 WARD, 
 
 relation of guarcfian to the domicil of his 
 
 (See Infant and Non Compotes.) 
 
 WIDOW, 
 
 domicil of 
 
 (See Wife.) 
 WIFE, 
 
 domicil of, merges in that of husband 209 
 
 and continues to follow it through all of its changes so long 
 
 as the marriage relation subsists 209 
 
 grounds of identity of domicil of husband and 209 
 
 Roman law 210 
 
 invalid marriage, effect of, on domicil 210, 212 
 
 betrothal does not change domicil 210, 211 
 
 receives domicil of husband instantly upon marriage .... 213 
 
 although she has not yet arrived at the place of his domicil 213 
 
 domicil of, follows that of husband 214 
 
 although she does not accompany him to his new place of 
 
 abode 214 
 
 cannot acquire a domicil for herself . 215 et seq. 
 
 even with the consent of her husband 215 
 
 or even though a formal deed of separation has been executed 216 
 
 divorced a vinculo, may acquire for herself 217 
 
600 index: 
 
 WIFE — continued. Section 
 retains domicil of her husband until she acquires one for her- 
 self 222 
 
 divorced a mensa et thoro may establish a domicil for herself 217 et seq. 
 
 British authorities 219, 220 
 
 American authorities 221 
 
 domicil of nfemme separee de corps under the French Code Civil 218 
 widow retains the domicil of her deceased husband until she 
 
 establishes one for herself 222 
 
 can a wife entitled to a divorce establish a domicil for herself? 39, 
 
 223 et seq. 
 
 American authorities • 224, 224a 
 
 English cases . . .... 225 
 
 the doctrine if at all admissible does not extend beyond cases of 
 
 divorce 226, 227 
 
 and family, residence of, presumed to be the domicil of husband 
 
 and father 401 et seq. 
 
 but this presumption is not conclusive 404, 405 
 
 cannot control the domicil of her husband 404 
 
 nationality and religion of, as evidence of the domicil of her 
 
 husband 407 
 
 performance of the marriage ceremony in accordance with 
 
 the religion of, as evidence of the domicil of her husband . . 407 
 relation of residence of wife at time of marriage to qu'asi- 
 
 national domicil . . 408 
 
 residence of, particularly important in determining domicil of 
 
 sailor 306 
 
 WILL, 
 
 description in, evidence of domicil 462 
 
 but not conclusive 463 
 
 form of, sometimes evidence of domicil 466 
 
 validity, construction, etc., of 
 
 (See Succession.) 
 WRITTEN DECLARATIONS, 
 
 more reliable than oral ones . 455 
 
 (See Declarations.) 
 
 UniverBity PresB, Cambridge: John Wilson & Son. 
 
KF i)-66 J17 
 
 Author Vol. 
 
 Jacobs, Michael Win 
 
 Title Copy 
 
 A Treatise on the law of domii