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domicile: “I think the court has been under the necessity, in all cases, of taking all the acts of every kind, more or less important, throughout the man's life, upon which there is evidence, taking not only his acts, but his declarations valeat quantum, and then judging whether the testator did or did not mean to give up his domicile of origin, and adopt a new one. I may say, with regard to the evidence of acts, that acts which have been treated as of great importance in some cases, have been treated as of little importance in others. For example, the first act 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 by foreign jurists, been considered a very important ingredient in the question; and, in other cases, it has been considered as of little importance; that is, as compared 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 importance 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 recerlendi, or the animus as to changing domicile. 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 consideration in trying the question whether there was an intention to change the domicile,-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."
The impossibility of establishing any absolute criterion of domicile, is also well illustrated by remarks of Sir W. P. Wood, V.C., in Forbes v. Forbes, 18 Jur. 642, 647. He says that, in the case of a married man, the residence of his wife is of great importance. “Now, I say, looking to these dicta of the jurists, – looking, too, at this dictum of Lord Brougham, -I think that I am not saying too much in concluding that an Englishman's home is there where are his wife and the establishment he usually requires with regard to himself and his wife, in preference to that place in which his wife never resided.” But the Vice Chancellor at once qualifies these strong expressions by saying: “Now, the effect, no doubt, of the residence of the wife might be rebutted (it is not conclusive any more than any other of these indicia) by stronger evidence of a contrary character.” It would certainly not be difficult to imagine a case in which indicia of this kind would be of the very smallest value. A Mohammedan, for example, might well have one domestic establishment in Turkey, another in India, and a third in Persia. The importance of the residence of a wife seems to depend upon the existence of the institution of monogamy.
In Drevon v. Drevon, 10 Jur. (N. S.) 717, Kindersley, V.C., said: “I think the tendency of the decisions of our courts, of late years, that is, for some time past, has been this : upon the question of the abandonment of the domicile of origin, and the adoption of a new domicile, to be less and less disposed to give weight to circumstances and acts which formerly were considered to be of considerable importance, I think the courts are more slow than they were to hold that there was a change of domicile."
Perhaps this tendency in the courts may be explained by a change which has
taken place outside the courts. When the early cases on the law were decided, travelling was much less common than it is now. Then a man travelled once in his life; now he may be in the habit of spending half his years in one country, and half in another. It would be a great hardship if these changes of residence were continually to involve changes of domicile, and certainly in most cases there is no intention of change. Naturally, judges have been influenced by considerations of this kind; considerations which seem to us to show vividly the impossibility of framing absolute canons, or establishing unalterable criteria of domicile.
A great deal of the confusion as to the law of domicile has arisen from the looseness with which the word itself has been used. Thus, in Somerville v. Somerville, 5 Ves. 750 (1801), a great deal is said of the “two domiciles” of the intestate. But it is quite evident, from the decision, that the word is used loosely, and means sometimes “ place of residence,” and sometimes domicile strictly. The case was one concerning the succession to personal property, and depended on the decision of the question whether Lord Somerville, the intestate, had an English or Scotch domicile at the time of his death. It was held by the Master of the Rolls (Sir Richard Pepper Arden) that his domicile was at that time and always had been Scotch. It is clear from this that no question of two domiciles arose in the case. We find some remarks, however, in a later portion of the opinion which show that the Master of the Rolls, though quite clear as to the point actually decided, was by no means accurate in his conception of the general meaning of the term domicile. He says, “What would be the case upon two contemporary and equal domiciles, 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 domicile that he has completely abandoned, might acquire in the same or different countries two domiciles at the same instant, 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 loci rei sitæ must prevail; for the country in which the property is would not let it go out of that until they know by what rule it is to be distributed. If it was in this country, they would not give it up until it was proved that he had a domicile somewhere." But the difficulty is that a man cannot have two domiciles at one and the same time, and the case supposed of a man coming no one knows whence, and settling no one knows where, is only one of those extremely unfrequent cases in which no evidence is produced on any point by either party.'
On p. 786, it is stated that a man may have two domiciles for some purposes; but that he can have only one for the purpose of succession. But what are these purposes ? He may, it is true, be domiciled in one State and vote in another, or be domiciled in one State and pay taxes in another, or be domiciled in one State and bring suit in another; but neither voting, nor paying taxes, nor bringing actions, will give him a new domicile.
1 In Forbes v. Forbes, 18 Jur. 642, 647, the party as to whom the question of domicile arose had two residences. This seems to be the case supposed in Somerville v. Somerville. In Gilman v. Gilman, 52 Me. 165, it was held that a person can have but one domicile of sac-cession.
The confusion as to the meaning of the word domicile, which we have noticed in the English cases, is still more apparent in the American decisions. The statutes of the various States relating to taxation, insolvency, process, and the rights of citizenship, generally contain the words “ residence,” or “ inhabitant," and it is on the construction of these terms that the cases turn. The meaning of such terms must of course depend on the particular statute. Sometimes residency and habitancy will be held to be the equivalent of domicile, as in provisions relating to testamentary matters; for there can be no reason in these cases to suppose that the legislature intended to override established rules of general law. Sometimes, on the other hand, as in statutes giving creditors remedies against absent debtors, it may be necessary to carry out the legislative intent to give the words a more restricted meaning. Isham v. Gibbons, 1 Bradf. (N. Y.) 69. An examination of a few of the cases will show how seldom a question of domicile, in the general sense, is involved in them. Harvard College v. Gore, 5 Pick. 370, was an appeal from a decree of the Judge of Probate for Middlesex, allowing the will of Christopher Gore, on the ground that the testator was, at the time of his death, “ an inhabitant of and resident in " the County of Suffolk. The case turned on the statute of 1817, ch. 190, and therefore does not present a question of domicile in the general sense of the term. The court (Parker, C. J.) were of opinion that the word "inhabitant” in the statute had a different meaning from “ resident." The court say, “We think that, without reference to the law of domicile, the true construction of our own statute will settle the question in the present case."
Thorndike v. Boston, 1 Met. 242, was assumpsit to recover back a tax assessed upon the plaintiff by the assessors of the defendant city. The ground of the action was that the plaintiff was not an inhabitant of Boston at the time of assessment.
Sears v. Boston, 1 Met. 250, was a case of the same kind. In Holmes v. Greene, 7 Gray, 299, the question was one of the right to vote. Williams v. Roxbury, 12 Gray, 21, related to taxation. So also Kilburn v. Bennett, 3 Met. 199.
Greene v. Greene, 11 Pick. 410, was an application by the wife for divorce. The libellee contended that neither of the parties had a domicile in Massachusetts to found jurisdiction. But the court held otherwise, considering that the husband's domicile was in Uxbridge, in the county of Worcester. Wilde, J., who delivered the opinion, said, “ Another view might be taken of this case, if necessary. Speaking individually, I should have no hesitation in saying that a man may have two domiciles in different States, or within separate jurisdictions, so as to be amenable to a process of this description in either. That a man may have two domiciles for some purposes, although he can have but one for succession to personal property, is well settled in England and in other countries. Somerville v. Somerville, 5 Ves. 750."
In Abington v. N. Bridgewater, 23 Pick. 170, the question related to the settlement of a pauper, and it was treated by the court as one of domicile. Shaw, C.J., lays it down that every person must have a domicile somewhere, and that a man can have only one domicile for one purpose at one and the same time; that every one has a domicile of origin, which he retains until he acquires another; and the one thus acquired is, in like manner, retained. He continues: “The supposition that a man can have two domiciles would lead to the absurdest con
sequences. If he had two domiciles 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, collectively 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.” This language has been criticised as confounding allegiance with domicile, the difference between which is stated in Udny v. Udny; and, indeed, it seems open to objection. But perhaps the best illustration of the variety of meanings attaching to the word “ domicile" is to be derived from an examination of the decisions in Colton v. Long Meadow and Shaw v. Shaw.
In Massachusetts, the date which determines the domicile for purposes of taxation is May 1. It has been decided in that State that one who on the first day of May had abandoned his Massachusetts domicile, and had gone beyond the State limits, not intending to return there to reside, but intending to take up his residence in Pennsylvania, where he had ever since resided, was not taxable in Massachusetts on May 1. The court say, “On said 1st of May he was in itinere, but he had absolutely abandoned his residence in this State, and had departed therefrom. ... This precise point was adjudged in Briggs v. Rochester, 16 Gray.” Colton v. Long Meadow, 12 Allen, 598.
But as to the above rule it was said by Foster, J., in delivering the opinion in Shaw v. Shaw, 98 Mass. 158, “The rule that one who has left this Commonwealth with the intention never to return here to reside, is no longer a taxable inhabitant of Massachusetts, even if he has not yet acquired a new domicile in another State or country, is not in conflict with the principles which we have stated” (as to change of domicile), “but depends upon different language in the statutes, and upon a different class of considerations, it is such an exception to the ordinary rule of construction as ought not to be extended.” And the court accordingly decided that a libellee in a divorce case (the husband) had not lost his Massachusetts domicile so far as to prevent jurisdiction in the suit by his wife by abandoning his residence in Massachusetts with the intention of acquiring a new one in Colorado.
It is evident that the decision in Colton v. Long Meadow is grounded on the general policy of the Massachusetts statutes relating to taxation, and Shaw v. Shaw on the general policy of the law relating to divorce. Neither of them touches the law of domicile as it relates to succession, nor would they again have any other than a remote bearing on questions of domicile as affecting citizenship. And so it is in all similar cases. The word “domicile” must always be understood as limited by the particular facts. Indeed, it is very unfortunate that the word “ domicile” has not been strictly confined to the meaning allotted to it in such cases as Udny v. Udny. If this were done, we should then be able to appropriate to their proper use the terms “ citizenship," " residence," "settlement," and “ habitancy,” and avoid a confusion which, with the accumulation of cases, is every year growing worse and worse. See Warren v. Thomaston, 43 Me. 406.
DIGEST OF THE ENGLISH LAW REPORTS FOR FEBRU
ARY, MARCH, AND APRIL, 1870.
Action. A lessee can maintain an action against the assignee of his assignee for the defendant's breaches of the covenant to repair in the original leases, after having paid the lessor the damages which such breaches occasioned (CLEASBY, B., dissentiente). — Moule v. Garrett, L. R. 5 Ex. 132. See SLANDER; Way. ADMINISTRATION. — See EXECUTOR AND ADMINISTRATOR.
AGENT. - See PRINCIPAL AND AGENT.
AGREEMENT. — See CONTRACT.
ANCIENT Light. Defendant built a wall projecting at right angles to the back wall of the plaintiff's house for twelve feet, on the north. The wall was already thirty feet high, and was to be higher. The plaintiff at the same time, by enlarging his own premises, was shutting off some light from the south and south-west, and was also opening new lights in addition to the ancient ones which he maintained. Held, that he was entitled to an injunction. — Staight v. Burn, L. R. 5 Ch. 163.
ANNUITY. — See FORFEITURE; NOVATION, 1; SECURITY, 2. AssIGNMENT. — See ACTION; FRAUDULENT CONVEYANCE; SECURITY, 2.
AssumPSIT. — See HUSBAND AND WIFE, 1; INSURANCE, 4.
BAILMENT. — See CARRIER.
BANKRUPTCY. 1. The English Bankruptcy Act of 1861 is made applicable to "all debtors, whether traders or not.” A person having privilege of parliament, and not a trader, was held not exempt from their operation. - Ex parte Morris. In re Duke of Newcastle, L.R. 5 Ch. 172.
2. A drawer of a bill of exchange, who has taken it up after an act of bankruptcy committed by the acceptor, but before adjudication, has a debt, on the strength of which he may petition for adjudication against the acceptor. — Ex parte Cyrus, L. R. 5 Ch. 176.
See Costs; FORFEITURE; INSPECTION OF DOCUMENTS; MORTGAGE, 1; Power, 1; SHERIFF; WINDING UP.
BILLS AND NOTES. 1. To an action by the payee against the drawer of a bill for the accommodation of the acceptor, the defendant pleaded an agreement made at the time of the