or of intention, will not be admitted in any but a few exceptional cases hereafter to be noticed. jeoparded, or even 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, disquietude in the mind of the wife, and thereby to destroy her comfort and health often, and as there is no attempt here to show that this is a simulated excuse, we must treat it as made in 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 complainant? They were: that the parties were married in England; after a time removed to Ireland; returned again to England, and the libellant, 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 inference 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 obligation, 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 reasoning from the facts sworn to here? The woman had for years followed the for tunes of her husband,- faithful in everything, 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 strongest desire to follow his footsteps further, and determined her to cling to her native 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 desertion." This case, however, was decided upon other grounds. Agnew, J., in 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? Clearly, no State right to regulate the status of its own citizens can justify this." Similar is the language 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. Even 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. Roman Law. In the Roman law the effect of marriage 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 senatorial rank, and became clarissima; and on the other, a patrician woman, upon marriage with a plebeian, lost her nobility and became plebeian. And in the same manner, upon marriage, the wife exchanged her domicil for that of her husband. "Mulieres honore maritorum erigimus, genere nobilitamus, et forum ex eorum persona statuimus; et domicilia mutamus. Sin autem minoris ordinis virum postea sortitæ fuerint; priore dignitate privatæ, 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 celebration of a valid marriage was a necessary condition. Therefore a woman did not change her domicil by the mere betrothal," Ea, quæ disponsa est, ante contractas suum non mutat domicilium," 3- nor by an invalid marriage.4 The travagance, or ungovernable temper." have 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 reasonof 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 1 Dig. 23, t. 2, l. 1. that stated by Brewster, J., in Cutler v. Cutler, 2 Brewst. 511, a case of divorce on the ground of desertion: "A husband cannot, from mere whim or caprice, remove his wife beyond the comforts of home, friends, and refine ment, to take her beyond the jurisdiction of their former domicil; but he has the undoubted right to change his home as often as his business, his comfort, or health may require; and, so long as his conduct in this particular is free from the taint of cruelty, we 2 Code 12, t. 1, 1. 13. This passage appears in the same language, but with slightly inverted order, in Code 10, t. 39, 1. 9. See also, on the subject of the domicil of the wife, the following passages, which are given supra, § 5, note 1; Dig. 5, t. 1, 1. 65; Id. 23, t. 2, 1. 5; Id. 50, t. 1, 1. 38, § 3. 3 Dig. 50, t. 1, 1. 32; see also Voet, Ad Pand. 1. 5. t. 11, no. 95; and Zangerus, De Except. pt. 2, c. 1, no. 61. 4 Dig. 50, t. 1, 1. 37, § 2. "Mulieres, quæ in matrimonium se dederint 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," 6 some French. jurists hold that the wife of such interdit has her domicil with the tutor of her husband.7 § 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 recognition to incorporate it into the modern law, it may be considered as having received such affirmance in the Scotch case of Arnott v. Groom, where it was held that a Scotch lady, residing in England under circumstances which would not of themselves 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 muneribus fungendas, unde mariti earum sunt, sciendum est; sed unde ipsæ ortæ sunt." This language might appear equally applicable to liability to municipal burdens because of citizenship; but it is plain that throughout the whole passage, of which this is a part, Callistratus is speaking of incolæ and not of cives. 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 primo intelligere oportet de vera, non etiam putativa uxore, de justa quæ ducta est secundum juris civilis leges et ritum; non etiam de injusta contra has leges et ritum ducta, cum nec uxor dicatur." 5 Art. 108. "La femme mariée n'a point d'autre domicile que celui de son mari." 6 Id. 7 Demolombe, Cours de Code Napoléon, t. 1, no. 363; Duranton, Cours de Droit Français, t. 1, no. 371; Marcadé, Cours de Code Civil, art. 108, no. 1; Massé et Vergé sur Zachariæ, t. 1, § 89, no. 7, p. 123. Contra, Richelot, Principes de Droit Civil Francais, t. 1, no. 244; Aubry et Rau, sur Zachariæ, t. 1, § 143; no. 7, p. 580. Where, however, the wife has been appointed tutrice of her interdit husband, his domicil follows hers in reversal of the general rule. Demolombe, loc. cit.; Duranton, t. 1, no. 366; Mersier, Traité, etc., des Actes de l'État Civil, no. 139. 19 D. (Sc. Sess. Cas. 2d ser. 1846), 142. The Lord Ordinary (Lord Wood) seems to have put his decision (which was affirmed) upon the true ground. He said: "Nor does the matrimonial engagement indicate intention to change, for it is a mere intention to change de 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 permanently in England." Lord Fullerton, 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 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 § 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 marriage was void did not prevent her from acquiring a settlement at the same place with her supposed husband, if she had sufficient 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 doctrine 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 settlement. 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 of the marriage. The case seems therefore to be an authority only for the posi 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." Lords Boyle (President) and Mackenzie concurred with Lord Fullerton in adhering. Lord Jeffrey dissented, considering con tinued presence in England and engagement to marry there sufficient to constitute an English domicil. From this case we may reason a fortiori, as indeed it would be clear apart from all authority, that if the lady had not at the time of or subsequently to the engagement resided in any manner in England, a change of domicil would not have resulted from her mere engagement to marry an Englishman. 1 Concord v. Rumney, 45 N. H. 423. 2 Middleborough v. Rochester, 12 Mass. 363. 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 Marriage. - 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. 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 statutes of the place of that domicil, although she has not yet arrived there." James, L. J., in Harvey v. Farnie,3 remarks : "If a domiciled foreigner comes here for the purpose of taking a wife from this country, the moment the marriage is contracted, the moment the vinculum exists, then the lady becomes 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 law regulating the marriage does not require for the completion of the marriage tie deductio in domum. If the applicatory law demands as an essential element of the marriage the arrival of the wife at the home of the husband, the statement in the text must, of course, be modified. But such is not, in general at least, the modern law. See Zangerus, De Except. pt. 2, c. 1, nos. 60–64. 2 Intr. aux Cout. d'Orléans, no. 10. 8 L. R. 6 P. D. 35. |