have followed Story either in words or in substance. Moreover, 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 Rob. 17, 12. The Indian Chief." It must be remembered, however, as has been before pointed out, that different presumptions arise in cases of national character and domicil in general. Thus, for instance, greater stress is laid in the former class of cases than 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 domicil. 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 Rawle, 312, 319, says: "His domicil of origin, which was at most but suspended, was instantly revived by his resumption of the character of an American citizen, even before the dissolution of his connection with the foreign house. For an acquired character, depending, as it does, not on the existence of commercial relations, 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 case (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 (Judicial Citizenship), says that domicil of origin "is recovered by any manifesta tion of a disposition to resume the native character; perhaps by a surrender of a new domicil. In fact it may be considered rather as suspended than annihilated." But he evidently had in mind the decisions in cases of national character, and particularly the views expressed by himself in The Venus (q. v.), where he was disposed to give great latitude 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 [domicil of origin] continues until he has acquired another, and revives if the acquired domicil has been totally abandoned without any intention of acquiring 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 abandoned. 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 Walworth, Ch.; Reed's Appeal, 71 Pa. St. 378; Mills v. Alexander, 21 Tex. 154. See The Venus, as explained in the last note. Kellar v. Baird, 5 Heisk. 39, might seem to a certain extent to support the doctrine of Udny v. Udny. 4 Mitchell v. United States, 21 Wall. 350; Desmare v. United States, 93 U. S. 605; In re Walker, supra; Littlefield v. Brooks, 50 Me. 475; Gilman v. Gilman, 52 Me. 165; Jennison v. Hapgood, 10 Pick. 77; Thorndike v. Boston, 1 Metc. 242; Opinion of the Judges, 5 Met. 587; McDaniel v. King, § 202. Doctrine of Udny v. Udny 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; Hegeman v. Fox, 31 Barb. 475; Fiske v. Railroad, 53 id. 472; Ames v. Duryea, 6 Lans. 155; Brown v. Ashbough, 40 How. Pr. 260; Isham v. Gibbons, 1 Bradf. 69; Clark & Michener v. Likens, 2 Dutch. 207; Pfoutz v. Comford, 36 Pa. St. 420; Reed's Appeal, 71 id. 378; Hindman's Appeal, 85 id. 466; Ringgold v. Barley, 5 Md. 186; Pilson v. Bushong, 29 Gratt. 229; Lindsay v. Murphy, 76 Va. 428; Goodwin v. McCoy, 13 Ala. 271; Glover v. Glover, 18 id. 367; Talmadge's Adm'r v. Talmadge, 66 id. 199; Church v. Crossman, 49 Iowa, 447; Kellar v. Baird, 5 Heisk. 39; Cole v. Lucas, 2 La. An. 946; McIntyre v. Chappel, 4 Tex. 187; Hardy v. De Leon, 5 Tex. 211; Shepherd v. Cassidy, 20 id. 24; Gouhenant v. Cockrell, id. 96; Contra Hicks v. 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 domicil of origin and acquired domicil. In Thorndike v. 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 continues until he acquires another; and vice versa, by acquiring a new domicil, he relinquishes his former one." And almost this identical language is repeated in many of the cases. In Gilman v. Gilman, Davis, J., says: "In regard to questions of citizenship and the disposition of property after death, every person 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 rendered 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 ascertaining 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, fron these maxims, that a man retains his domicil of origin till he changes it by acquiring another; and so each successive domicil continues until it is 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." 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 abandonment of acquired domicil is shown, without any reference to the substitution for it of a new domicil. The rule of law is not satisfied without the acquisition 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 appear 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 determined, first, by the domicil of the defendant, if he had one; and secondly, if he had no domicil, by his origo or 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. But as it has been settled 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. Reverter, therefore, will not be presumed, and the onus probandi rests upon him alleging it. 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 be sued; but if such domicil was abandoned the forum of the person reverted to the place of his origo. Substituting domicilium originis for origo, and domicilium habitationis for domicil, 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 strictness the reverter was rather one of forum than of domicil. In the Roman Law, as has been pointed out, origo and domicilium might actively co-exist, especially with reference to municipal burdens; and such also was the doctrine of some of the modern civilians with respect to domicilium originis and domicilium habitationis. Thus, according to Bartolus, "Originis domicilium est immutabile, et ideo qui alibi habitat censetur habere duo domicilia." See opinion of Grotius, Hollandsche Consultatien, vol. iii. p. 528, Henry, For. L. p. 197. Domicil of origin, therefore, was not, according to this view, suspended or put in abeyance upon the acquisition of domicil of choice, as was held in Udny v. Udny, and, therefore, could not revert; al though the application of domicil of origin to particular purposes (e. g., forum, personal succession, etc.) was superseded by the application of domicil of choice, when the latter existed distinct from the former. For present continental 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 domicil 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 theoretically different, it is in its practical results the same as the American doctrine above stated (see supra, §§ 81, 90). 1 Maxwell v. McClure, 6 Jur. (N. s.) 407; s. c. sub nom. Donaldson v. McClure, 20 D. (Sc. Sess. Cas. 2d ser. 1857) 307; Lord Advocate v. Lamont, 19 id. 779; Harvard College v. Gore, 5 Pick. 370. In Maxwell v. McClure, where the person whose domicil was in question was Scotch by origin, but had concededly established an English domicil and had returned to Scotland, Lord Cranworth said: "Where it is admitted on both sides that a particular person has at one time a particular domicil, the onus of proof, to be deduced from all the circumstances and facts of the case, lies on the party who at a future time is not sufficient,2 nor is mere return without abandonment of the acquired domicil.3 - The necessary § 204. The Requisite Factum for Reverter. 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.1 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 sufficiently to bear the voyage to England. She continued, however, 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 France, her acquired domicil." In the Alabama case of State v. Graham,2 where the petitioner for discharge has to show that the domicil has been changed. The presumption is that it continues till evidence has been given to show that it has been changed." And the other lords who took part in the decision of the case used similar language. In Harvard College v. Gore, Parker, C. J., said: “Undoubtedly it was incumbent upon the appellees to prove a change of domicil from that which arose from birth, education, business, and civil and political relations, for the burden of proof was upon them; but this they have done in the most satisfactory manner, according to all rules which govern the subject. The onus probandi is therefore shifted, and it has become the duty of the appellants to show, according to the same rules, that this second domicil has been unintentionally abandoned and the forum originis resumed." 2 Stanley v. Bernes, 3 Hagg. Eccl. 373; Attorney-General v. Fitzgerald, 3 Drew. 610; Johnson v. Twenty-one Bales, 2 Paine, 601; s. c. Van Ness, 5; State v. Graham, 39 Ala. 454. 3 Maxwell v. McClure, 6 Jur. (N. s.) 407; Allardice v. Onslow, 34 L. J. Ch. 434; Craigie v. Lewin, 3 Curteis, 435; The Friendschaft, 3 Wheat. 14; The Ann Green, 1 Gall. 274; The Joseph, id. 545; Burnham v. Rangeley, 1 Woodb. & M. 7; Johnson v. Twentyone Bales, supra; Kemna v. Brockhaus, 10 Biss. 128; Williamson v. Parisien, 1 Johns. Ch. 389; In re Catharine Roberts's Will, 8 Paige, Ch. 519; Russell v. Randolph, 11 Tex. 460; Mills v. Alexander, 21 id. 154. 1 3 Swab. & Tr. 49. from military service appeared to have been prevented from leaving Alabama, where he had acquired a domicil, and returning 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 striking contrast with the English 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. — Abandonment must clearly appear. A mere contingent intention not to return to the acquired domicil is not sufficient; abandonment must be final and complete; 2 although a distant possibility of return to the place of the acquired domicil will not prevent reverter.3 § 206. The Transit to Domicil of Origin need not be Direct. Even upon the American theory of reverter, "it is of no consequence that the return home is not immediate, or by the shortest road. If the fact of final abandonment and the intention to return to the old concur, 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 journeyed from San Francisco to Boston by way of France, remaining 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. - Otherwise as to Municipal Domicil. - It was said, in the Connecticut case of Bank v. Balcom,1 that the doctrine of reverter 1 Craigie v. Lewin, supra. 2 Cases cited in § 203, note 3, and White v. Brown, 1 Wall. Jr. C. Ct. 217; In re Walker, 1 Lowell, 237; Matter of Scott, 1 Daly, 534. Attorney-General v. Pottinger, 30 L. J. (Exc.) 284, per Bramwell, B. 1 In re Walker, supra. 1 35 Conn. 351. |