to reside permanently at the given place. If he has so chosen, the motive which induced him to do so is immaterial. It may even be immoral or illegal.1

In the case of a person imprisoned, it is quite obvious that as a general rule his confinement cannot be considered as giving him a domicil of choice in the place of his confinement, if he had it not before. He must be held to retain the domicil previously possessed by him, unless in fact he becomes so enamored of his prison-house as to determine to remain permanently in that locality. The application of this latter principle is apparent in the case of one imprisoned for a term of years only, even though he should die while in confinement. And it is be lieved the same general rule will apply where he is imprisoned for life. But there should be some positive evidence that he has voluntarily made up his mind to live permanently in the place of his confinement. Mere resignation to the inevitable, without the actual mental operation incident to the formation of intention, is not an exercise of choice, and therefore will not suffice.*

With respect to exiles, a distinction is to be made between such as are compelled to permanently abandon their country by the command of a superior political power, and those who, because of persecutions and restraints upon liberty, abandon it without compulsion. In the former case the presumption is against a change of domicil, it being never presumed that the exile has abandoned all hope of return. This must be shown by affirmative evidence.5

1 Young v. Pollak, 85 Ala. 439, 5 So. 279, 282; Hegeman v. Fox, 31 Barb. (N. Y.) 475, 483; Fosdick v. Fosdick, 15 R. I. 130, 23 Atl. 140; State v. Ross, 76 N. C. 242, 22 Am. Rep. 678, 679; Colburn v. Colburn, 70 Mich. 647, 38 N. W. 607. See Reed v. Reed, 52 Mich. 117, 17 N. W. 720, 50 Am. Rep. 247, 251; Ennis v. Smith, 14 How. 400, 401; Guarantee Co. v. Bank, 95 Va. 480, 28 S. E. 909, 3 Va. Law Reg. 873. As was said in Chitty v. Chitty, 118 N. C. 647, 32 L. R. A. 394, 24 S. E. 517, "the question is one of law, not of morals, and we could not inquire into the latter."

2 Jac. Dom. § 272.

3 Jac. Dom. §§ 272, 273; Guarantee Co. v. Bank, 95 Va. 480, 28 S. E. 909, 3 Va. Law Reg. 873.

Jac. Dom. § 274. But see Whart. Confl. L. § 54.

Jac. Dom. §§ 277 et seq.; Ennis v. Smith, 14 How. 400; White v. Brown,

1 Wall. Jr. 217, 265; DeBonneval v. DeBonneval, 1 Curteis, 856.

In the case of fugitives from justice, as in the case of exiles and refugees, there is no presumption indulged of the abandonment of their former homes. An intention to reside permanently in their haven of refuge must be affirmatively shown."

§ 58. Same - Invalids compelled to reside Abroad. — The determination of the domicil of an invalid, compelled by considerations of health to leave his home and reside elsewhere, is often a matter of great perplexity. The principle here is the same as in other cases; the difficulty lies in applying it, in ascertaining the invalid's intention. If his intent is to live permanently in his new abode, the fact that he is impelled to make the choice by reason of fears for his life is immaterial. The motive for his decision will not be inquired into. But he must intend to live at the place to which he goes in search of health. An intention merely to die there is not enough.

Mr. Dicey, with his usual accuracy of thought, has made this matter so plain that it will only be necessary to borrow from him. After noting various confused and confusing dicta on the subject, he says:1

"The apparent inconsistency between these doctrines may be removed or explained, if we dismiss all reference to motive, to external necessity, and so forth, avoid the use of the misleading terms 'voluntary' and 'involuntary,' and, recurring to the principle that residence combined with the purpose of permanent or indefinite residence constitutes domicil, apply it to the different cases or circumstances under which a domiciled Englishman may take up a foreign residence for the sake of his health."

He then proceeds to give three cases. His first case is that of an Englishman (D) who goes to France for relief from sickness, with the firm intention of residing there six months and no longer. He proceeds: "This case presents no difficulty whatever. D does not acquire a French domicil any more than he does if he goes to France for six months on business or for pleasure. He has not the animus manendi, but the quite

• Young v. Pollak, 85 Ala. 439, 5 So. 279, 282; Chitty v. Chitty, 118 N. C. 647, 24 S. E. 517, 32 L. R. A. 394; Reed v. Reed, 52 Mich. 117, 50 Am. Rep. 247, 248, 17 N. W. 720.

1 Dicey, Conf. L. 144 et seq

"

different intention of staying for a determinate time or definite purpose."

His next case: "D, finding that his health suffers from the English climate, goes to France and settles there, that is, he intends to reside there permanently or indefinitely. D in this case acquires a French domicil. Here again there is no deviation from general principle. D acquires a French domicil because he resides in France with the animus manendi."

His third case: "D goes to France in a dying state, in order to alleviate his sufferings, without any expectation of returning to England.

"This is the case which has suggested the doctrine that a change of residence for the sake of health does not involve a change of domicil. The doctrine itself, as applied to this case, conforms to common sense. It would be absurd to say that D, who goes to Pau to spend there in peace the few remaining months of his life, acquires a French domicil. But the doctrine in question, as applied to this case, is in conformity not only with common sense, but with the general theory of the law of domicil. D does not acquire a domicil in France because he does not go to France with the intention of permanent or indefinite residence in the sense in which these words are applied to a person settling in another country, but goes there for the definite and determinate purpose of passing in France the few remaining months of his life. The third case, now under consideration, is in its essential features like the first, and not like the second, of the cases already examined. If D knew for certain that he would die precisely at the end of six months from the day he left England, it would be apparent that the first and third case were identical. That the definite period for which he intends to reside is limited, not by a fixed day, or by the conclusion of a definite piece of business, but by the expected termination of his life, can make no difference in the character of the residence. In neither the first nor the third case is the residence combined with the proper animus manendi. .. The

...

↑ Hoskins v. Matthews, 8 DeG. M. & G. 13, 25 L. J. (Ch.) 689, 35 Eng. L. & Eq. 532; Hegeman v. Fox, 31 Barb. (N. Y.) 475.

dicta of the authorities who lay down that a residence adopted for the sake of health does not involve a change of domicil are obviously delivered by persons who had before their minds the third, not the second, of our supposed cases. These dicta, again, embody what, in reference to such a case, is a perfectly sound conclusion. Their only defect is that they are expressed in terms which are too wide, and which therefore cover circumstances probably not within the contemplation of the authorities by whom they were delivered; and further, that, while embodying a sound conclusion, they introduce an unnecessary and misguiding reference to the motives which may lead to the adoption of a foreign domicil."

Actual

§ 59. Further Elements of Domicil of Choice Presence and Animus Manendi. Supposing that nothing appears in the circumstances of a particular case to show a want of freedom of choice, two elements must concur to establish a domicil of choice, namely, actual presence in the country, and the intention to remain there permanently or for an indefinite time at least (animus manendi). Indeed, the first essential referred to in the preceding sections, freedom of choice, is a necessary implication from the requirement of an intention to reside, for there can usually be no real or active intention where there is no freedom of choice. It has been treated separately however for the sake of clearness. In this aspect it may be truly said that wherever the two elements of presence and intention combine, a domicil of choice is created, and all former domicils are ipso facto abandoned.1

It must be observed that neither presence alone, tion alone, will suffice to create a domicil of choice.

nor intenBoth must

See Dicey, Confl. L. 145-146; Jac. Dom. §§ 287-296; Johnstone v. Beattie, 10 Cl. & F. 42, 138; Moorehouse v. Lord, 10 H. L. Cas. 272, 292; Anderson v. Laneuville, 9 Moore, P. C. 325; Hoskins v. Matthews, 8 DeG. M. & G. 13, 28, 25 L. J. (Ch.) 689, 35 Eng. L. & Eq. 532; Dupuy v. Wurtz, 53 N. Y. 556; Hegeman v. Fox, 31 Barb. (N. Y.) 475; Isham v. Gibbons, 1 Bradf. (N. Y.) 69; Mayo v. Equitable Assurance Society, 71 Miss. 590, 15 So. 791; Still v. Woodville, 38 Miss. 646. See Udny v. Udny, L. R. 1 Sc. App. 441.

1 Dicey, Confl. L. 104; Story, Confl. L. § 46; Jac. Dom. §§ 125, 126. For a qualification of this statement, see post, § 64.

concur, and at the very moment they do concur the domicil is created. As it is sometimes expressed, the factum (presence) and the animus (intention) must unite. And thereafter no change of locality alone (there being no change of intent) or vice versa, no change of intention (there being no change of locality), will effect an alteration of the domicil of choice, which remains where it was, until the factum and the animus again unite.1

These two essential elements of domicil must now be examined a little more fully.

§ 60. Actual Presence. It is usually said that the elements necessary to the creation of a domicil of choice are residence and the animus manendi. The term "residence,' "" as here used, means simply the actual bodily presence of the party, if that presence is coupled with the intention to remain permanently. It but tends to confusion to designate this presence as a "residence," though in fact and in law it is a residence if it is coupled with the intention to remain.

The possible confusion incident to the use of the term "residence" in this connection is well illustrated by the state of facts in White v. Tennant. In that case the party abandoned his residence in one State, with no intention of resuming it, and

• Ringgold v. Barley, 5 Md. 186, 59 Am. Dec. 107, 109; Hairston v. Hairston, 27 Miss. 704, 61 Am. Dec. 530; Mitchell v. United States, 21 Wall. 350; Allgood v. Williams, 92 Ala. 551, 8 So. 722; Price v. Price, 156 Penn. St. 617, 27 Atl. 291; White v. Tennant, 31 W. Va. 790, 8 S. E. 596, 597; Dupuy v. Wurtz, 53 N. Y. 556; De Meli v. De Meli, 120 N. Y. 485, 491; City of Hartford v. Champion, 58 Conn. 268, 20 Atl. 471, 473–474; Shaw v. Shaw, 98 Mass. 158.

Dupuy v. Wurtz, 53 N. Y. 556; De Meli v. De Meli, 120 N. Y. 485, 491; Vischer v. Vischer, 12 Barb. (N. Y.) 640; Steer's Succession, 47 La. Ann. 1551, 18 So. 503, 504; Mayo v. Equitable, etc. Society, 71 Miss. 590, 15 So. 791; Hart v. Lindsey, 17 N. H. 235, 43 Am. Dec. 597, 601; Lowry v. Bradley, 1 Speer's Eq. (S: C.) 1, 39 Am. Dec. 142, 143-144.

1 31 W. Va. 790, 8 S. E. 596, 597. See also Hill v. Hill, 166 Ill. 54, 46 N. E. 751. The difficulty, where the term "residence" is used, is that there is an implication that the stay must be more or less protracted, and that if merely momentary, even though there exists at the time an intention to remain permanently, it will not suffice to create a domicil. The reverse of this is true, however, as shown by the above cases.