established intention to retain a permanent residence in another place." But it must be observed that in this case other facts besides residence tended to show animus manendi. Kosciusko had resided nineteen years in France, under circumstances and with declarations showing, on the one hand, his abandonment of his domicil of origin, and, on the other, his intention to remain in France permanently, or at least until the happening of an improbable event. § 379. Id. Residence by itself Equivocal. But, on the other hand, in Isham v. Gibbons,1 it was held that naked residence amounts to nothing unless accompanied with evidence of intention; and in Jopp v. Wood, it was said to be at least equivocal. In the latter case, Turner, L. J., said: "Although residence may be decisive as to the factum, it cannot, when looked at as to the animus, be regarded otherwise than as an equivocal act. The mere fact of a man residing in a place different from that in which he has been before domiciled, even although his residence there may be long continuing, does not of necessity show that he has elected that place as his permanent, and abiding home. He may have taken up and continued his residence there for some special purpose, or he may have elected to make the place his temporary home. But domicil, although in some of the cases spoken of as a home, imports an abiding and permanent home, and not a mere temporary one." § 380. Id. Sir Herbert Jenner, in De Bonneval v. De Bonneval. In De Bonneval v. De Bonneval,1 Sir Herbert Jenner said: "I apprehend that it being prima facie evidence only, that where a person resides, there he is domiciled, it is necessary to see what was the domicil of origin of the party. Having first ascertained the domicil of origin, that domicil prevails till the party shall have acquired another, with an intention of abandoning the original domicil. That has been the rule since the case of Somerville v. Somerville. Another principle is, that the acquisition of a domicil does not simply depend upon the residence of the party; the fact of residence must 1 1 Bradf. 69. 24 De G. J. & S. 616. 11 Curteis, 856. be accompanied by an intention of permanently residing in the new domicil, and of abandoning the former; in other words, the change of domicil must be manifested, animo et facto, by the fact of residence and the intention to abandon. A third principle is, that the domicil of origin having been abandoned, and a new domicil acquired, the new domicil may be abandoned and a third domicil acquired. Again, the presumption of law being that the domicil of origin subsists until a change of domicil is proved, the onus of proving the change is on the party alleging it, and this onus is not discharged by merely proving residence in another place, which is not inconsistent with an intention to return to the original domicil; for the change must be demonstrated by fact and intention." The rule laid down by Lord Alvanley, in Somerville v. Somerville, although his language is somewhat obscure, would seem to mean that clear proof must be made of abandonment of domicil of origin before any value can be attached to residence. § 381. Id. Lord Westbury, in Bell v. Kennedy, and Sir John Nicholl, in Moore v. Darrell. In Bell v. Kennedy,1 Lord Westbury used language in marked contrast with that of Wayne, J., above quoted. Lord Westbury said: "Although residence may be some small prima facie proof of domicil, it is by no means to be inferred from the fact of residence that domicil results; even although you do not find that the party had any other residence in existence or in contemplation." In this case there was sufficient proof of abandonment of domicil of origin, but it also appeared that residence was in pursuance of a contingent animus manendi. In Moore v. Darrell and Budd,2 Sir John Nicholl said: "Cases of domicil do not depend upon residence alone, but on a ... 25 Ves. Jr. 750. "The third rule I shall extract is, that the . . . domicil of origin is to prevail until the party has not only acquired another, but has manifested and carried into execution an intention of abandoning his former domicil and taking another as his sole domicil." That Lord Alvanley could not have contemplated the co-existence of two domicils is evident from his declaration that a man can have only one domicil for the purpose of succession, which was the matter involved in the case. 1 L. R. 1 Sch. App. 307, 321. [CHAP. XXI. consideration of all the circumstances of each particular case." § 382. Length of Residence or Time. As the value of residence as evidence of intention depends largely upon the length and the manner of the residence, it is proper to consider these elements somewhat in detail; and, First, as to length of residence or time. Length of residence as a substitute for intention has already been considered in its appropriate place; it is proposed now to discuss it as evidence of intention. If a man leaves his domicil of origin, and going into another country dwells there for a considerable length of time,- for ten, twenty, or thirty years, it needs no authority for saying that, in the absence of explanatory evidence, he will be presumed to intend to remain there permanently. Great weight has therefore been attached by the authorities to length of residence as evidence of animus manendi;2 not only where it is unexplained and uncontradicted by other facts, but also in many cases where it is contradicted by facts which would otherwise be taken as indicating animus revertendi. But if the purpose of residence, however long, appears to be consistent with animus revertendi (as in the case, for example, of an ambassador or consul), the presumption of animus manendi fails, and the stronger presumption of the continuance of the former domicil prevails; and, a fortiori, if sufficient evidence of animus revertendi 1 Supra, § 135 et seq. 2 Moorhouse v. Lord, 10 H. L. Cas. 272 (per Lord Kingsdown); Anderson v. Laneuville, 9 Moore P. C. C. 325; Hodgson v. De Beauchesne, 12 id. 285; Stanley v. Bernes, 3 Hagg. Eccl. 373; Lyall v. Paton, 25 L. J. Ch. 746; Drevon v. Drevon, 34 id. 129; Lord v. Colvin, 4 Drew. 366; Cockrell v. Cockrell, 2 Jur. (N. s.) 727; Attorney-General v. Kent, 1 Hurl. & Colt. 12; Bremer v. Freeman, 1 Deane, 192, on appeal, 10 Moore P. C. C. 306; Haldane v. Eckford, L. R. 8 Eq. Cas. 631; Brunel v. Brunel, L. R. 12 Eq. Cas. 298; King v. Foxwell, L. R. 3 Ch. D. 518; Doucet v. Geoghegan, L. R. 9 Ch. D. 441; Gillis v. Gillis, Ir. R. 8 Eq. 597; The Ann Green, 1 Gall. 274; White v. Brown, 1 Wall. Jr. C. Ct. 217; Johnson v. Twenty-one Bales, 2 Paine, 601, s. c. Van Ness, 5; Knox v. Waldoborough, 3 Greenl. 455; Hulett v. Hulett, 37 Vt. 581; Easterly v. Goodwin, 35 Conn. 279; Elbers & Krafts v. Ins. Co. 16 Johns. 128; Dupuy v. Wurtz, 53 N. Y. 556; Hood's Estate, 21 Pa. St. 106; Bradley v. Lowery, Speer's Eq. 1; Hairston v. Hairston, 27 Miss. 704; D'Argentré, Consuet. Brit. art. 449; Pothier, Intr. aux Cout. d'Orléans, nos. 15 and 20; Henry, For. Law, pp. 208, 209; Phillimore, Dom. no. 259 et seq.; Id. Int. L. vol. iv. no. 299 et seq.; Dicey, Dom. p. 123; and see infra, § 97 et seq. appear, the presumption from time, of course, fails. Length of time is, therefore, strong evidence of intention,3 but by no means conclusive.1 This crite § 383. Id. Roman Law and Continental Jurists. rion was so conspicuous as to call forth a declaration concerning it in the Roman law;1 namely, in the case of the student, concerning whom it was declared, by the letter of Hadrian, that he was not to be supposed to be domiciled at the place of his studies, unless, ten years having elapsed, he had set up for himself a habitation there. Concerning the precise meaning and effect of this provision (which has been applied by Modern Civilians to persons in general), there has been much discussion; some of the Civilians,3 among whom were Accursius and Baldus, apparently holding that residence in a place for ten years created a legal presumption of domicil there; while others, including Alciatus, Mascardus,5 Menochius, Zangerus, Burgundus, Molinæus, and, apparently, Bartolus,10 held that, while decennial residence was evidence of the establishment of domicil, it was not conclusive, but was to be left, together with all the other facts of the case, to the discretion of the judge to determine "according to the condition and quality of the person and the place." "11 8 See cases cited in last note. 4 Hodgson v. De Beauchesne, supra; Jopp v. Wood, 4 De G. J. & S. 616; Stanley v. Bernes, supra; Collier v. Rivaz, 2 Curteis, 855; Re Capdevielle, 2 Hurl. & Colt. 985; Cockrell v. Cockrell, supra; Doucet v. Geoghegan, supra; Bremer v. Freeman, supra; Gillis v. Gillis, supra; The Ann Green, supra; White v. Brown, supra; Knox v. Waldoborough, supra; Hulett v. Hulett, supra; Easterly v. Goodwin, supra; Bank v. Bascom, 35 Conn. 351; Dupuy v. Wurtz, supra; Vischer v. Vischer, 12 Barb. 640; Horne v. Horne, 9 Ired. 99; Bradley v. Lowery, supra; Eagan v. Lumsden, 2 Disn. 168; Kellar v. Baird, supra; Dicey, Dom. pp. 123, 124; Wharton, Confl. of L. § 66; and see infra, §§ 388 et seq., 393 et seq. 1 Code 10, t. 39, 1. 2. § 5, note 1. See supra, 2 The views of different writers are set forth by Zangerus, De Except. pt. 2, c. 1, no. 45 et seq.; Mascardus, De Probat. concl. 535, no. 6 et seq.; Lauterbach, De Domicilio, § 27. See also Phillimore, Dom. no. 261; Id. Int. L. vol. iv. no. 301. Phillimore, however, seems to be in error with regard to the opinion of Bartolus. 3 See Zangerus, De Except. pt. 2, c. 1, no. 45 et seq., and Mascardus, De Probat. concl. 535, no. 6 et seq. 4 In Dig. 50, t. 16, 1. 203, De Verborum Significatione. 5 Loc. cit. 6 De Arbitr. Jud. lib. 2, cent. 1, cas. 86. 7 De Except. pt. 2, c. 1, no. 47. 8 Consuet. Fland. Tract. 2, no. 34. Opera, t. 2, p. 903, ed. 1681, cons. 31, no. 21. 10 In Code 10, t. 39, 1. 2. 11 Zangerus, loc. cit.; Mascardus, loc. cit. nos. 9 and 10; Lauterbach, De § 384. Ia. id. Most of the Civilians also took the position that, even in the case of the student, a domicil might be acquired without decennial residence. Burgundus1 says: Burgundus says: "Nec ipsi qui studiorum causâ aliquo loco morantur, domicilium ibi habere creduntur, nisi decem annis transactis eo loco sedes sibi constituerint. Sed hoc intellige, re dubiâ, ut puta quod uxorem ibi duxerit, possessiones emerit, professionem adepti sint. Alioquin quoties de contraria voluntate constat, decennali spatio domicilium non constituitur. Ideoque mercenarius, studiosus, mercator, quamdiu animum redeundi habent, domicilium acquirere non possunt. Animum verò redeundi habere non videntur, qui transportatis bonis, quæ in patria habebant, alio domicilium transferunt, sicut nec ille, qui in alia regione degens, bona ibi emit, privilegium civitatis impetrat, uxorem ducit, decennii spatio habitat; sed hoc ultimum in scolastico non aliter accipiendum erit, quam si aliquo alio signo perseverandi animum demonstret. Quamdiu enim liquet in patriam meditari reditum, et absoluta studiorum periodo remigrare velle, nullo temporis spatio domicilium constituitur. Domicilium ergo vel solo momento figi potest, si appareat de voluntate quæ ex conjecturis non inepte probabitur." Corvinus says: "Nec etiam sola habitatio per se, etiamsi sit longissimi temporis, domicilium constituit. Qui tamen per Domicilio, § 27. The latter thus speaks of the controversy on this subject: "Quodnam autem temporis spatium, aut quantus annorum numerus ad hunc diuruitatem requiratur, doctores valde inter se digladiantur. Plerique judicis arbitrio id relinquunt, ut ex loci et personarum conditione ac qualitate vel breviori vel longiori termino dijudicet. [Zangerus and Menochius are here cited, and compared with Mascardus and Mævius.] Quidam existimant etiam solo decennio domicilium contrahi, et ad hoc probandum adducunt (2 C. de incolis), cui hanc rationem jungunt, quod per diuturnum tempus, decem scilicet annorum, domicilium præscriptum esse censeatur, Ernest. Cothm. vol. i. resp. 21, b. 4 et Warmser, exerc. 4, q. 10, p. m. 152. Qui etiam argumentis Zangeri ita respon- 1 Consuet. Fland. Tract. 2, no. 34. p. 45 b. |