Nos. 3-5.- - Somerville v. Somerville; Bell v. Kennedy; Udny v. Udny. — Notes.

of long residence. In this case, J. S., a native of Scotland, went to Calcutta in 1805, then being aged 19. He there became a clerk in the house of F. & Co., merchant bankers, and remained as such for about two years. In 1807 he left Calcutta and carried on business on his own account as an indigo planter at different places in the province of Bengal. In 1814 he returned to Calcutta, became a partner in the house of F. & Co., and was from 1814 to 1819 an active partner in the firm. In 1816 he married. In 1819 he went to Scotland on a visit; stayed there for more than a year, and returned to Calcutta in October 1820. On his return to Calcutta, he resumed his duties as a partner in the firm of F. & Co., and from that time until his death took an active part in the business. His wife set out for England in 1825 and died on the voyage. He (J. S.) died of cholera in 1830. The father of J. S., who died in 1814, left him the preponderating interest in a family estate, to which (although it was not entailed) he had always reasonable hopes of succeeding. There was throughout his lifetime correspondence containing frequent expressions of an intention to return home when he had made enough money to pay off some burdens on the estate. The MASTER OF THE ROLLS held that J. S. never lost his Scotch domicil of origin, and the Lords Justices KNIGHT BRUCE and Turner concurred in this decision. There was no doubt here the element of a family estate, but it is noteworthy that the indefinite character of the inten tion to return was not held to assist the presumption afforded by the long residence. On this point the MASTER OF THE ROLLS, after referring to the Anglo-Indian domicil presumed by service under a commission in the Army of the Hon. East India Company, says (34 L. J. Ch. 217): "I have not found any case in which this doctrine has been extended to a person who becomes the servant of a private establishment abroad, or who goes abroad for the purpose of acquiring a fortune with the intention of returning at some indefinite period, when his object may have been attained. If so, any merchant who goes from this country and settles in any foreign country, in order, for instance, to correspond with a London or Liverpool house, and to do this until he has acquired a sufficient fortune to enable him to live comfortably at home, would acquire a domicil there notwithstanding the repeated and continual expression of his intention not to remain in that country, but to return as soon as he could. . . . I consider that the cases I have referred to, namely, Bruce v. Bruce, Munroe v. Douglas, and Forbes v. Forbes, have settled the rule as to officers and covenanted servants of the East India Company resident in India, but I consider this to be the exception; and as in this case I find that the father of the infants always intended to return to Scotland and never intended to make India his home, I am of opinion that his residence there from 1805 to 1830 did not give him an

Nos. 3-5. Somerville v. Somerville; Bell v. Kennedy; Udny v. Udny. —Notes.

Indian domicil, and that he never lost his domicil of origin, which was Scotch."

AMERICAN NOTES.

The principal cases are very largely cited in Jacobs on Domicil.

Mr. Jacobs says that the decided cases clearly establish "the principle that for whatever purpose a person might have more than one domicil, he can have but one for the purposes of succession." Citing the Somerville case; White v. Brown, 1 Wallace Jr. (U. S. Circ. Ct.), 217; Güman v. Gilman, 52 Maine, 165; 83 Am. Dec. 502; Greene v. Greene, 11 Pickering (Mass.), 410; Dupuy v. Wartz, 53 New York, 556; Hindman's Appeal, 85 Pennsylvania State, 466; and concluding: "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." See Grimmett v. Witherington, 16 Arkansas, 377; 63 Am. Dec. 66; Allen v. Thomason, 11 Humphreys (Tennessee), 536; 54 Am. Dec. 55; Taylor v. Jeter, 33 Georgia, 195; 81 Am. Dec. 202.

If the mother survives the father, the domicil of the child remains with her during widowhood. School Directors v. James, 2 Watts & Sergeant (Penn.), 568; 37 Am. Dec. 525; Succession of Lewis, 10 Louisiana Annual, 789; 63 Am. Dec. 600.

Every person receives at birth a domicil, known as "domicil of origin." Jacobs on Domicil, sect. 104, citing the Udny case; Littlefield v. Brooks, 50 Maine, 475; Abington v. North Bridgewater, 23 Pickering (Mass.), 170; Crawford v. Wilson, 4 Barbour (New York Supr. Ct.), 504; Matter of Scott, 1 Daly (New York Com. Pl.), 534.

If the child is legitimate his domicil of origin is that of his father; if illegitimate, that of his mother. Jacobs on Domicil, citing the Udny case; Prentiss v. Barton, 1 Brockenbrough (U. S. Circ. Ct.), 389; Johnson v. Twenty-one Bales, 2 Paine (U. S. Circ. Ct.), 601; Hart v. Lindsey, 17 New Hampshire, 235; 43 Am. Dec. 597; Ex parte Dawson, 3 Bradford (New York Surrogate Ct.), 130; Allen v. Thomason, 11 Humphreys (Tennessee), 536; 54 Am. Dec. 55; Harkins v. Arnold, 46 Georgia, 656; Story on Conflict of Laws, sect. 46.

The domicil of origin adheres until another domicil is acquired by choice, with the intention to remain. This is substantiated by many of the cases cited above, in addition to which reference is made to Hallett v. Bassett, 100 Massachusetts, 167; Brown v. Ashbough, 40 Howard Practice (New York), 260; Reed's Appeal, 71 Pennsylvania State, 378; Quinby v. Duncan, 4 Harrington (Delaware), 383; Plummer v. Brandon, 5 Iredell Eq. (Nor. Car.), 190; Colburn v. Holland, 14 Richardson Equity (So. Car.), 176; Riue High, Appellant, 2 Douglass (Michigan), 515; Kellogg v. Supervisors, 42 Wisconsin, 97; Layne v. Pardee, 2 Swan (Tennessee), 232; Morgan v. Nunes, 54 Mississippi, 308; Cross v. Everts, 28 Texas, 523; Lowry v. Bradley, 1 Speers Equity (So. Car.), 1; 39 Am. Dec. 142; Shepherd v. Cassiday, 20 Texas, 24; 70 Am. Dec. 372; Gilman v. Gilman, 52 Maine, 165; 83 Am. Dec. 502. But see Hicks v. Skinner, 72 North Carolina, 1, which holds that one may abandon his domicil of origin, either with or without the design of acquiring another, and that until he acquires another he has none except that of actual residence. Citing Wharton on Conflict of Laws, sect. 78.

Somerville v. Somerville; Bell v. Kennedy; Udny v. Udny. — Notes.

The animus manendi at the new place is essential. United States v. Pene lope, 2 Peter's Admiralty (U. S.), 438; Sears v. Boston, 1 Metcalf (Mass.), 250; Matter of Wrigley, 8 Wendell (New York), 134; Ensor v. Graff, 43 Maryland, 291; State v. Hallett, 8 Alabama, 159; Vele v. Koch, 27 Illinois, 129; Church v. Crossman, 49 Iowa, 444; State v. Dodge, 56 Wisconsin, 79; Republic v. Skidmore, 2 Texas, 261; Story's Conflict of Laws, sect. 44; Wharton's Conflict of Laws, sect. 56; Gravillon v. Richards' Ex'r, 13 Louisiana, 293; 33 Am. Dec. 563. So if the mind is changed before reaching the new place, the old domicil remains. Actual removal and actual intent to remain at the new place must unite. Ringgold v. Barley, 5 Maryland, 186; 59 Am. Dec. 107. Temporary absence, with the intention of returning, does not destroy the domicil. Bucknam v. Thompson, 38 Maine, 171; 61 Am. Dec. 237. See notes, 55 Am. Dec. 355; 56 ibid. 532. The old domicil is not destroyed by leaving it, with intent never to return, until a new one is actually acquired. Ayer v. Weeks, 65 New Hampshire, 248; 23 Am. St. Rep. 37. But when the new one is reached, his domicil therein is not destroyed by his immediately returning to the former domicil on a visit, and there dying. White v. Tennant, 31 West Virginia, 790. In this case the Court (after the exhaustive manner of West Virginia judges) summed up the doctrine of change of domicil, as follows: "Two things must concur to establish domicil, -- the fact of residence, and the intention of remaining. These two must exist, or must have existed, in combination. There must have been an actual residence. The character of the residence is of no importance; and if domicil has once existed, mere temporary absence will not destroy it, however long continued. Munro v. Munro, 7 Clark & F. 842. The original domicil continues until it is fairly changed for another. It is a legal maxim that every person must have a domicil somewhere; and he can have but one at a time for the same purpose. From this it follows that one cannot be lost or extinguished until another is acquired. Baird v. Byrne, 3 Wall. Jr. 1. When one domicil is definitely abandoned, and a new one selected and entered upon, length of time is not important; one day will be sufficient, provided the animus exists. 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. Munroe v. Douglass, 5 Madd. 405. Thus a constructive residence seems to be sufficient to give domicil, though an actual residence may not have begun. Wharton's Conflict of Laws, sec. 58. A change of domicil does not depend so much upon the intention to remain in the new place for a definite or indefinite period as upon its being without an intention to return. An intention to return, however, at a remote or indefinite period, to the former place of actual residence will not control, if the other facts which constitute domicil all give the new residence the character of a permanent home or place of abode. The intention and actual fact of residence must concur, where such residence is not in its nature temporary. Hallet v. Bassett, 100 Massachusetts, 170, 171; Long v. Ryan, 30 Grattan (Virginia), 718. In Lowry v. Bradley, 1 Speers Equity (S. Car), 1; 39 Am. Dec. 142; it is held that change of domicil is consummated when one leaves the State where he has hitherto resided, avow

Nos. 3-5. - Somerville v. Somerville; Bell v. Kennedy; Udny v. Udny. — Notes.

ing his intention not to return, and enters another State intending to permanently settle there.' A domicil once acquired remains until a new one is acquired elsewhere facto et animo. Story's Conflict of Laws, sect. 47; Hart v. Lindsey, 17 New Hampshire, 235; 43 Am. Dec. 597. Where a person removes from one State to another, and establishes a fixed residence in the latter, it will become his domicil, although there may be a floating intention to return to his former place of abode at some future period. Ringgold v. Barley, 5 Maryland, 186: 59 Am. Dec. 107. If a man, intending to remove with his family, visits the place of removal beforehand to make arrangements, or even sleeps there occasionally for convenience, and then transfers his family, the change of domicil takes effect from the time of removing with the family; but if he has definitely changed his residence, and taken up his abode permanently in a new place, the fact that his family remains behind until he can remove them conveniently, and that he visits them occasionally, will not prevent the new place being his domicil.' Guier v. O'Daniel, Am. Leading Cases (733), 903; Cambridge v. Charlestown, 13 Massachusetts, 501.”

Domicil cannot be acquired in itinere. Where one abandons his domicil of origin in fact, with the present intention of acquiring a new one, if he dies in itinere, and before he has consummated that intention by an actual residence, the domicil of origin immediately reverts and reattaches. Smith v. Croom, 7 Florida, 81; Fayette v. Livermore, 62 Maine, 229. And where one who had acquired a domicil in a foreign country, was on his return to his native country and died in itinere, that fact is not enough to create the presumption of an abandonment of the foreign domicil, but it must be proved that he left with the intention of such abandonment. Mills v. Alexander, 21 Texas, 154.

The presumption of law is that the domicil of origin is retained, until residence elsewhere has been shown by him who alleges a change of it. But residence elsewhere repels the presumption, and casts upon him who denies it to be a domicil of choice, the burden of disproving it. The place of residence must be taken to be a domicil of choice unless it is proved that it was not meant to be a principal and permanent residence. Ennis v. Smith, 14 Howard (U. S. Sup. Ct.), 400 (case of General Kosciusko's will).

The mere sending forward of one's wife and family to a new residence does not work a change of domicil until the head of the family joins them. Casey's Case, 1 Ashmead (Penn.), 126; Penfield v. Chesapeake, &c. R. Co., 29 Federal Reporter, 494. Contra: Bangs v. Brewster, 111 Massachusetts, 382, a case of municipal domicil; the doctrine of which Mr. Jacobs regards as questionable. But it seems that a new domicil is acquired by the going forward of the head of the family, although he intends to return for his family. Jacobs on Domicil, p. 252, comparing some conflicting cases.

A distinction must be observed between national character and allegiance. The former may change in itinere. The Venus, 8 Cranch (U. S. Sup. Ct.), 253, 280; Story's Conflict of Laws, sect. 48.

If the intention of permanently residing in a place exists, any residence in pursuance of that intention, however short, will establish a domicil. 5 Am.

Somerville v. Somerville; Bell v. Kennedy; Udny v. Udny. — Notes.

& Eng. Cyc. of Law, p. 863, (citing Bell v. Kennedy); Horne v. Horne, 9 Iredell Law (Nor. Car.), 99; Parsons v. Bangor, 61 Maine, 457; Cadwalader v. Howell, 3 Harrison (New Jersey), 138; Hart v. Horn, 4 Kansas, 232; Carey's Appeal, 75 Pennsylvania State, 201; Swaney v. Hutchins, 13 Nebraska, 266.

The doctrine of reverter of domicil is adopted in 5 Am. & Eng. Cyc. of Law, p. 865, citing the Udny and Bell cases, but no analogous American

cases.

...

As to the doctrine of reverter established in the Udny case, Mr. Jacobs says (Domicil, sect. 113): "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 seems never to have been raised. . . . The doctrine of reverter has been, up to this time at least, confined by the Ameri can decisions to cases where there was an animus revertendi to the domicil of origin." Mr. Jacobs devotes an entire chapter to Reverter of Domicil, devoted to and criticising the Udny case, and citing Story's rule substantially as our law: "Reverter takes place only when the party has abandoned his acquired domicil, and is in itinere to the place of his original domicil." (Domicil, sects. 191, 201). In re Walker, 1 Lowell (U. S. Circ. Ct.), 237; The Francis, 1 Gallison, (U. S. Circ. Ct.), 614; Johnson v. Twenty-one Bales, 2 Paine (U. S. Circ. Ct.), 601; Bank v. Balcom, 35 Connecticut, 351; Matter of Wrigley, 8 Wendell (New York), 134, 140; Reed's Appeal, 71 Pennsyl vania State, 378; Mills v. Alexander, 21 Texas, 154.

Kellar v. Baird, 5 Heiskell (Tennessee), 39, and some dicta in The Venus, 8 Cranch (U. S. Sup. Ct.), 252, look the other way.