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 F. 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 Poorhouse. 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 57; Fayette Co. v. Bremer Co., 56 id. 516.

1 Pittsfield . Detroit, 53 Me. 442; Dexter v. Sangerville, 70 id. 441; Strong v. Farmington, 74 id. 46; Anderson v. Anderson, 42 Vt. 350; Clark v. Whitaker, 18 Conn. 543; Freeport v. The Supervisors, 41 Ill. 495; Washington Co. v. Mahaska Co., 47 Iowa,

2 Fayette Co. v. Bremer Co., supra.

1 Yarmouth v. North Yarmouth, 44 Me. 352; Freeport v. The Supervisors, supra; Dale v. Irwin, 78 Ill. 160; Clark v. Robinson, 88 id. 498; Covode

rule is put are well stated by Walker, C. J., in Freeport 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 exercise of volition by persons, free from restraint, and capable of acting for themselves, in order to acquire a residence. A person 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 presumption 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 designated 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 becomes 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 Freeport, 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.2

§ 271. Inmates of Hôtel des Invalides in France, and of Soldiers' Homes in this Country. — In France it has been decided

v. Foster, 4 Brewst. 414; Munroe v. Jackson, 2 Cong. El. Cas. 101.

2 Re Registry Lists, 10 Phila. 213.

that the Hôtel des Invalides "forms the domicil and permanent 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 Demolombe, Cours de Code Napoléon, t. 1, no. 354; Sirey et Gilbert, Code Civil Annoté, art. 102, note 13.

376

CHAPTER XIII.

DOMICIL OF PARTICULAR PERSONS (continued),

EXILES, REFUGEES, ETC.

§ 272. Domicil 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;1 and this is so, whether he is imprisoned in pursuance of a criminal conviction or on civil process; as, for example, for debt. There is no English decision upon this subject, but the rule has been recognized by textwriters 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 temporary, he must be presumed to preserve the hope of return.2

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; Sharpe v. Orde, 8 S. (Sc. Sess. Cas. 1st ser. 1829), 49; Pittsfield v. Detroit, 53 Me. 442; Topsham v. Lewiston, 74 id. 236; Amherst v. Hollis, 9 N. H. 107; Pawlet v. Rutland, Bray. 175; Manchester v. Rupert, 6 Vt. 291 (citing also St. Albans v. Huntington, unreported); Danville v. Putney, id. 512; Woodstock v. Hartland, 21 id. 563; Northfield v. Veshire, 33 id. 110; Baltimore v. Chester, 53 id. 315; Grant v. Dalliber, 11 Conn. 234; Freeport v. The Supervisors, 41 Ill. 495; Hardy v. De Leon, 5 Tex. 211; Covode v. Foster, 4 Brewst. 414; Denizart, verb. Dom. no. 20; Merlin, Repertoire, verb. Dom. § 3, no. 4; Domat, Pub. L. bk. 1, t. 16, § 3, no. 14; Sirey et Gilbert,

Code Civil Annoté, art. 102, and authorities cited, notes 16-19; Phillimore, Dom. no. 146; Story, Confl. of L. § 47; Westlake, Priv. Int. L. 1st ed. no. 52 (but see also no. 53); Dicey, Dom. p. 129; Wharton, Confl. of L. § 53. See also Holbeck v. Leeds, 20 L. J. (N. s.) (M. C.) 107. Most of the American cases cited above are cases of pauper settlement, but the principles which they decide apply a fortiori to domicil. Apparently to the contrary are Reading v. Westport, 19 Conn. 561, and Washington v. Kent, 38 id. 249 ; but these cases rest upon statutory provisions.

2 See, e. g., Merlin, Denizart, and Wharton, loc. cit., and Northfield v. Veshire and Baltimore v. Chester, supra.

is not of his own volition but by constraint, and that, therefore, one of the main requirements for the acquisition of a new domicil, that is, that it be freely chosen, is not fulfilled.3 This ground, which seems to be supported by the reasoning in the analogous cases of the pauper maintained in an almshouse, 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 may acquire a Domicil where he is imprisoned. 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 intention would be required.1

§ 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 Massachusetts 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 domiciled Englishman who is transported to a penal colony for life. In the first two cases it is difficult, in the entire absence of

8 Westlake, Story, and Dicey, loc. cit., and Topsham v. Lewiston, Danville v. Putney, Woodstock v. Hartland, Grant v. Dalliber, and Freeport v. The Supervisors, supra.

1 In Woodstock v. Hartland, supra, a prisoner on civil process for debt, who was admitted to the liberties of the prison upon executing a jail bond to the sheriff, hired a house in Woodstock, where the jail was located, and moved his family thither. He there supported his family nine years, and paid taxes during those years. Held that he had

gained no settlement in Woodstock. But suppose the case of a prisoner serving a sentence for a definite time, who takes a lease of a house at the place of his confinement for a term exceeding that of his imprisonment, and whose family is by his direction there established in a permanent manner, or who gives other unmistakable evidence of his intention to remain there after the expiration of his sentence; in such case would not his domicil be held to be changed?