or other State officers, the only ground upon which the above language seems tenable is, that by reason of the national character of the presidential office, the citizen is more likely to be mistaken as to his right of suffrage than in the case of elections for State or local officers. Another example of mistake is furnished in Ellsworth v. Gouldsboro, where it was held that a person does not acquire a settlement in a town by voting and paying taxes there under the erroneous belief that his dwelling-house is within the limits of that town. However, even though the fact of voting remained unexplained satisfactorily, it is but a circumstance which although strong is usually liable to be overcome by other circumstances which tend to contradict the inference apparently to be drawn from it.10 § 436. Offering to Vote. Offering to vote at a place, although the ballot be rejected by the election officers, is also evidence of domicil there. This point was early held in the case of Guier v. O'Daniel, in which Rush, President, said: "It appears Guier was present at one election, and offered his ticket, which, though not received, is a striking fact to show he considered himself in the light of a citizen. The ticket not being received does not alter the nature of the transaction on the part of Guier; the evidence resulting from it, of intention to settle and reside, is the same as if it had been actually received." § 437. Refusing to Vote. Refusal to vote at a place on the ground that the person is not domiciled there is doubtless important evidence of such fact. It certainly strongly reinforces a declaration of that fact, but it is not conclusive; 2 and, moreover, such refusal is of no consequence, if made after the bringing of a suit in which the question of domicil is raised. So also refusal to be registered as a voter is not conclusive.4 9 Supra. 10 See cases cited in note 6, supra. 1 1 Binn. 349, note. 1 Heirs of Holliman v. Peebles, 1 Tex. 673; New Orleans v. Shepherd, 10 La. An. 268. pra. 2 Heirs of Holliman v. Peebles, su 8 Shelton v. Tiffin, 6 How. 163. 4 Hindman's Appeal, 85 Pa. St. 466. § 438. Failure to Vote. The mere omission to vote is admissible as cumulative evidence, but its value must be appreciated according to circumstances. Thus, in the case of a seafaring man, the omission to vote at the place where other circumstances tend to show him domiciled, is of little weight, particularly when taken in connection with the fact that he never voted elsewhere.2 § 439. Absence of the Right to vote. The absence of the right to vote does not necessarily indicate absence of domicil.1 Under the American system, which requires residence for a specified length of time as a condition precedent to the right of suffrage, it is necessary that domicil should precede the right to vote. Moreover, the right of suffrage depends upon age, and generally upon citizenship and sex, and may also depend upon property or other qualifications, apart from or in addition to domicil. § 440. Voting, etc. English Cases. - The subject has been considered in England also. In De Bonneval v. De Bonneval,1 it appeared, on the one hand, that the testator, who was French by origin, had "exercised his political rights as a French subject," and, on the other, that during his residence in England his name was included in the list of persons entitled to vote at the election of members of parliament in the borough in which he resided. Upon these facts, Sir Herbert Jenner remarked: "I am inclined to pay very little attention to the statements as to his exercise of political rights in France, or to his being registered as a voter here; being a housekeeper, he was registered here as a matter of course." It does not, however, appear what political rights he exercised in France. Drevon v. Drevon 2 was a case of an unnaturalized Frenchman, 1 Mooar v. Harvey, 128 Mass. 219; Dauphin County v. Banks, 1 Pears. 40. In Mooar v. Harvey, it was relied upon as a significant fact pointing to a change of domicil. 2 Hallet v. Bassett, 100 Mass. 167; Guier v. O'Daniel, 1 Binn. 349, note. 1 See Guier v. O'Daniel, supra, § 436, and infra, § 443, note 1. 1 1 Curteis, 856. For the other facts of this case, see supra, § 281. The case is probably authority for nothing more upon this point than that the mere registration of a person as a voter by the public officers is of little or no weight in defining his domicil, it not appearing that the registration was made at his request, or that he availed himself of the privilege of suffrage thus accorded him. 2 34 L. J. Ch. 129. long resident in England, who there voted for members of parliament. He appears to have voted but once. In holding his domicil to be English, Kindersley, V. C., strongly relied upon this fact, remarking: "It is true, in some of the cases it is said that voting is not considered a matter of very great weight he may have voted; he was rated, and he voted according to his rating. But we have the testator here exercising the functions belonging to a citizen of England and not belonging to an alien. I think that is a very important fact." § 441. Id. French Authorities. In France, also, voting is looked upon as evidence of domicil, although it has not as much weight as with us; inasmuch as a Frenchman may transfer his "domicile politique" (which is at best but a figurative expression) to a place different from that in which he has his "domicile réel." The exercise of political rights at a place is, however, considered as at least prima facie evidence that the person is domiciled there. It has been decided that inscription upon the electoral list does not of itself change the domicil of a Frenchman.2 § 442. Payment of Personal Taxes. As personal taxes are usually payable at the place of domicil, the payment of such tax without resistance or protest is evidence of domicil.1 But it is otherwise if the payment be made under protest,2 or under a misapprehension as to residence, or if payment of tax at a particular place be by law made to depend upon residence which is short of domicil. 1 Demolombe, Cours de Code Napoléon, t. 1. no. 345; Ancelle, Dom. pp. 98, 201 et seq.; Chavanes, Dom. pp. 113, 208 et seq.; and see authorities cited by Sirey et Gilbert, Code Civil Annoté, art. 102, note 4, and art. 103, note 19. 2 Sirey et Gilbert, art. 103, note 12. 1 Mitchell v. United States, 21 Wall. 350; Hulett v. Hulett, 37 Vt. 581; Cambridge v. Charlestown, 13 Mass. 501; Harvard College v. Gore, 5 Pick. 370; Weld v. Boston, 126 Mass. 166; Carey's Appeal, 75 Pa. St. 201; Yonkey v. State, 27 Ind. 236; State v. Steele, 33 La. An. 910; Wharton, Confl. of L. § 65; Pothier, Intr. aux So, too, if it appear that a Cout. d'Orléans, no. 20; Denizart, verb. Dom. no. 17; Merlin, Repertoire, verb. Dom. § 7; Demolombe, Cours de Code Napoléon, t. 1, no. 345; Sirey et Gilbert, Code Civil Annoté, art. 102, note 4-6, and art. 103, notes 17, 19, and au thorities cited. 2 Isham v. Gibbons, 1 Bradf. 69. 8 Ellsworth v. Gouldsboro, 55 Me. 94. In this case a person paid taxes in a town under the erroneous belief that his dwelling-house was located within its limits. See also McKowen v. MeGuire, 15 La. An. 637. 4 Dale v. Irwin, 78 Ill. 160. person elects to be taxed in one place rather than another for the purpose of escaping a heavier burden, or for similar reasons, such payment would not only not be conclusive upon the question of domicil, but might be held to have little or no effect.5 Said Shaw, Chief Justice, in Lyman v. Fiske: "The election of a man to pay taxes in one town rather than another may be a good motive and a justifiable reason for changing his habitancy; and if such election is followed up by corresponding acts, by which he ceases to be an inhabitant of the one and becomes an inhabitant of the other, his object may be legally accomplished. But such an election to be taxed in one town rather than another is only one circumstance bearing upon the question of actual habitancy, and to be taken in connection with the other circumstances, to determine the principal fact." A tax-list bearing the name of a person, with a memorandum of " paid " against it, is not evidence of domicil." § 443. Omission or Refusal to pay Taxes. On the other hand, the mere non-payment of taxes at the place of alleged domicil is usually of little weight against it,' particularly if it 5 Lyman v. Fiske, 17 Pick. 231. 6 Sewall v. Sewall, 122 Mass. 156. 1 De Bonneval v. De Bonneval, 1 Curteis, 856; Hallet v. Bassett, 100 Mass. 167; Guier v. O'Daniel, 1 Binn. 349, note. In De Bonneval v. De Bonneval, Sir Herbert Jenner said: "It is stated that he resisted with success the contribution to some of the French rates, which a person resident in France was liable to; but the grounds are not stated, and it is too loose a reasoning that because all French subjects are liable to such rates, and he successfully resisted them, therefore he was not domiciled in France. It must be shown that the question came regularly before the French tribunals, and he was held to be not a domiciled subject of France." In the case of the Marquis of Saint-Pater it was argued that the imposition of personal tax at Paris was evidence that he was there domiciled; but Cochin (Euvres, t. 6, p. 266 et seq.) turns this point the other way by showing that he never paid it. The petition, however, of the Marquis to the King for relief from payment was based upon the fact that he was not domiciled at Paris. This circumstance, therefore, met the objection made by Sir Herbert Jenner. In Guier v. O'Daniel, Rush, President, remarked: "It is, I think, extremely doubtful whether voting and paying taxes are in any case necessary to constitute a domicil, which, being a question of general law, cannot depend on the municipal regulations of any State or nation. Voting is confined to a few countries, and taxes may not always be demanded. Guier was a seafaring man, and one of the witnesses says that between the 14th Jannary, 1800, and the 15th October, 1801, he sailed six or seven times. Is it any wonder a single man thus engaged in trade should escape taxation? It frequently happens that young men who never go abroad are not discovered to be objects of taxation till they have reached the age of five or six and twenty. If Guier escaped taxation through the neglect of the offi appear that they were not paid elsewhere. The failure may be through lack of vigilance on the part of the public officers or (for example, in the case of a mariner) by reason of the frequent and prolonged absence of the person whose domicil is in dispute. But in Mooar v. Harvey,2 the case of a Massachusetts man who resided in Washington for fifteen years in government employ, the Supreme Court of Massachusetts held his failure to vote or pay taxes at the place of his former domicil in that State a significant fact pointing to a change of domicil. In Hindman's Appeal,3 the decedent's domicil of origin was in West Virginia, whence he removed to Pennsylvania. After coming into the latter State he refused to be either assessed or registered, and declared his intention of never paying any tax there. But this was held to be of no importance, inasmuch as after his removal he was not assessed and paid no tax in West Virginia, and moreover declared his intention never to do so. § 444. Holding Office an Important Criterion, but not Conclusive. The holding of a local office is also an important criterion.1 In Drevon v. Drevon, Kindersley, V. C., held that the fact that a Frenchman served in the office of head-borough in an English borough was an important fact tending to show his domicil in England, although not so important as voting. In Maxwell v. McClure, the fact that a Scotchman who was long resident and engaged in business in England, and who subsequently returned to Scotland, had become a town councillor and magistrate of an English borough, and after his return still retained those offices, was relied upon in the House of Lords as a circumstance to negative reverter. But the holding of a local office is by no means conclusive. Thus it was held, in Butler v. Hopper,2 that election to the legislature of a State does not fix domicil there in the face of clearly contradicting proof of animus manendi elsewhere. Still less does mere candidacy for such office.3 cers of government, it is impossible to conceive how their neglect can have any effect on the question of domicil." 2 128 Mass. 219. 3 85 Pa. St. 466. 407; Drevon v. Drevon, 34 L. J. Ch. 3 Mandeville v. Huston, 15 La. An. 1 Maxwell v. McClure, 6 Jur. (N. s.) 281. |