ence there, a domicil of choice arises. And since it can be changed thereafter only by the acquisition of a new domicil in the same way, it follows that no subsequent change of intention (alone), though the change take place the next day or the next moment, will effect a change of domicil.

We may even go a step further and lay it down as a corollary that though physical absence from the country be united with an intention to make that country no longer the party's home, the domicil will not in general be thereby destroyed. These mere negative propositions will effect no change of domicil. The propositions must be affirmative. The party must not only be absent from his former home, but must be present in the new; he must not only intend not to make the former home his permanent abode hereafter, but must affirmatively intend to make the new home his permanent abiding place. And both these affirmative propositions must coexist."

§ 64. Evidence of Animus Manendi. As in all questions of intention, it is often extremely difficult to arrive at a certain conclusion touching the animus manendi in cases of domicil. Much of the difficulty in ascertaining the domicil arises from this source. The trouble for the most part lies in the fact that the intention is rarely expressed, and must be inferred from all the surrounding circumstances.

The question in such cases is not what the party has said, but what was his real intention. The fact that one openly proclaims a place to be his permanent home does not make it so unless in fact the intention to reside there permanently exists. In general, however, the declarations of the party are admitted in evidence of the intention, as part of the res gesta.1

1 A modification of this principle may be noted in the case of a party who abandons a foreign domicil of choice, purposing to return to the country of which he is a citizen. See post, § 66.

2 See City of Hartford v. Champion, 58 Conn. 268, 20 Atl. 471; Dupuy v. Wurtz, 53 N. Y. 556; Jennison v. Hapgood, 10 Pick. (Mass.) 77, 98, 19 Am. Dec. 258; Shaw v. Shaw, 98 Mass. 158; Price v. Price, 156 Penn. St. 617, 27 Atl. 291; Cooper v. Beers, 143 Ill. 25, 33 N. E. 61; Mitchell v. United States, 21 Wall. 350.

1 Jac. Dom. §§ 449 et seq., to which the reader is referred for a full

4

2

Frequently there are no declarations, or they are ambiguous or untrustworthy as evidence. In such cases the courts are compelled to rely upon the acts of the party and the surrounding circumstances. In the decision of this question there are no points in a man's life, however trifling they may appear, which may not be examined. Amongst the acts and circumstances which have been considered by the courts in the determination of domicil are the exercise of the voting franchise; the payment of taxes on personalty; the ownership of a place of residence or of business; continued residence in a country; attendance upon a church, and active participation in its affairs; and various other circumstances of themselves trivial but sufficient to turn discussion. See Guier v. O'Daniel, 1 Binn. (Penn.) 349, note; Wilson v. Terry, 11 Allen (Mass.), 206; Holmes v. Greene, 7 Gray (Mass.), 299, 300; Viles v. Waltham, 157 Mass. 542, 32 N. E. 901; Thorndike ". Boston, 1 Met. (Mass.) 242; Mitchell v. United States, 21 Wall. 350; Ennis v. Smith, 14 How. 400, 401; Hairston v. Hairston, 27 Miss. 704, 61 Am. Dec. 530; Steer's Succession, 47 La. Ann. 1551, 18 So. 503, 506; Robert's Will, 8 Pai. Ch. (N. Y.) 519; Hegeman v. Fox, 31 Barb. (N. Y.) 475, 478-479; Fulham v. Howe, 62 Vt. 386, 20 Atl. 101. But see Wright v. Boston, 126 Mass. 161; Ayer v. Weeks, 65 N. H. 248, 18 Atl. 1108.

2 Jac. Dom. §§ 435 et seq.; Mitchell v. United States, 21 Wall. 350; Steer's Succession, 47 La. Ann. 1551, 18 So. 503, 506. Voting has even been said to be conclusive evidence of the party's intention to remain permanently, since there should be no presumption of fraud on the part of the voter. See Shelton v. Tiffin, 6 How. 163. But the weight of authority is in favor of its being considered only prima facie evidence of the animus manendi, since it may result from fraud or from the voter's bona fide mistake as to his legal rights. East Livermore v. Farmington, 74 Me. 154; Easterly v. Goodwin, 35 Conn. 279; Hayes v. Hayes, 74 Ill. 312; Folger v. Slaughter, 19 La. Ann. 323.

8 Jac. Dom. §§ 442 et seq.; Mitchell v. United States, 21 Wall. 350; Harvard College v. Gore, 5 Pick. (Mass.) 370. Such property is liable to taxation generally at the domicil of the owner.

4 Some authorities are inclined to give these last preponderating weight. See Story, Confl. L. §§ 46, 47. But though raising strong presumptions, they are not conclusive. Jac. Dom. §§ 401, 410 et seq.

5 Dupuy v. Wurtz, 53 N. Y. 556; Elbers v. Ins. Co. 16 Johns. (N. Y.) 128; Mowry v. Latham, 17 R. I. 480, 23 Atl. 13; Ennis v. Smith, 14 How. 400, 401; Shelton v. Tiffin, 6 How. 163. But see Jopp v. Wood, 4 DeG. J. & S. 616, 622.

Fulham v. Howe, 62 Vt. 386, 20 Atl. 101.

the scale in a close case, many of which will be found enumerated in more copious treatises on the subject of Domicil."

There is one combination of circumstances which deserves special attention in this connection and has given the courts much trouble. It is the case of double residence.

A person may have two residences between which he divides his time. Since he can have only one domicil, it is often difficult to tell which should be so regarded. If one is his principal establishment, the other being used only for short periods of the year, the first will clearly be the place of his domicil. Or if one is his residence and the other his place of business, though he actually spends more time at the latter, there can be no doubt that the first is his domicil. But if both are residences, and he passes about an equal portion of the year in each, with his family and establishment, it often becomes extremely difficult to decide which is his domicil. Great weight in these doubtful cases should be attached to the presumption of the retention of a prior domicil, and unless the evidence clearly predominates in favor of the home last acquired, the presumption should be in favor of the first as the party's domicil.10

In the absence of any circumstances from which the courts may infer the animus, they are accustomed to fall back on two legal presumptions, without which it would in some cases be impossible to arrive at any conclusion as to a party's domicil.

The first of these is the presumption that the party has retained the last domicil known to have been possessed by him. This follows from the principle that a domicil once acquired is retained until another is gained, and from the other principle growing out of it that the burden of proof is on him who alleges a change of domicil.11

7 See Jac. Dom. ch. xxii et seq.; Whart. Confl. L. §§ 63 et seq.; Dicey, Confil. L. 134, 135; Story, Conf. L. §§ 46-49. 9 Ibid.

8 Thayer v. Boston, 124 Mass. 132.

10 See Jac. Dom. §§ 422, 423; Gilman v. Gilman, 52 Me. 165, 83 Am. Dec. 502, 507. In Chenery v. Waltham, 8 Cush. (Mass.) 327, a curious instance of double residence occurred, the dividing line between two towns running through a man's house. See Jac. Dom. § 425.

11 Dicey, Confl. L. 133; ante, §§ 29, 56.

The second is the presumption of domicil inferred from mere presence in a country, in the absence of evidence to the contrary.

We have already seen that residence in a country may be ground to infer the animus manendi, in the absence of evidence to the contrary.12 This second presumption proceeds a step further, and provides for those cases (otherwise not to be solved) in which all that is known of the party is that he is found in a particular State. A newborn child may be laid at some one's door, or a stranger may be found dead, leaving no clue to identify him. In these cases, there being no evidence upon which to base an opinion, since according to the general principle no person can ever be without a domicil, the law must rely upon the weak presumption afforded by mere presence there. There is no ground upon which to fix his domicil elsewhere.18 § 65. Effect of Abandonment of Domicil Conflicting Views. - In the case of the domicil of origin, it is very clear that the intention to abandon it permanently, even when coupled with an actual abandonment thereof in pursuance of such intention, will not cause it to be lost, provided the party does not acquire a new domicil, for no person can be without a domicil, and there is none other that can be assigned him.'

But if the abandoned domicil be not the domicil of origin, it is possible for his original domicil to be assigned him. Even though no new domicil be acquired, the party will always have

12 Dupuy v. Wurtz, 53 N. Y. 556; Elbers v. Ins. Co., 16 Johns. (N. Y.) 128; Mowry v. Latham, 17 R. I. 480, 23 Atl. 13; Ennis v. Smith, 14 How. 400, 401.

18 Dicey, Confl. L. 132-133; Jac. Dom. §§ 375, 376; Bempde v. Johnstone, 3 Ves. Jr. 198; Bruce v. Bruce, 2 Bos. & Pul. 229, 230, note; Taylor v. Sharp, 108 N. C. 377, 13 S. E. 138; Guier v. O'Daniel, 1 Binn. (Penn.) 349, note. See Flood v. Growney, 126 Mo. 262, 28 S. W. 860. We have seen the application of this principle to determine the original domicil of foundlings, ante, § 34.

1 De Meli v. De Meli, 120 N. Y. 485, 491; Price v. Price, 156 Penn. St. 617, 27 Atl. 291; Hallett v. Bassett, 100 Mass. 167; Shaw v. Shaw, 98 Mass. 158; Jennison v. Hapgood, 10 Pick. (Mass.) 77, 98, 19 Am. Dec. 258; Harvard College v. Gore, 5 Pick. 370; Bell v. Kennedy, L. R. 3 H. L. 307. But see In re Rice, 42 Mich. 528, 4 N. W. 284.

his domicil of origin in reserve, which he may consider his home. In such case therefore the question arises, Shall the presumption of the retention of the last domicil be respected? Shall the party, having voluntarily abandoned a foreign domicil, be considered as still residing there, contrary to the notorious fact and to his evident desire and intention, merely because he has not yet made a home for himself elsewhere? Or shall he be presumed (for the nonce) to have resumed his original and native domicil?

The English authorities are in favor of the latter view, holding one who has abandoned a foreign domicil but has not acquired a new one to have resumed ipso facto his domicil of origin, though he has no intention of actually returning thither.2

Mr. Jacobs considers the American doctrine to be that the domicil of origin reverts only in the single case where the party, upon an abandonment of his foreign domicil, sets out to return to his original domicil; he then acquires as his domicil, even in itinere, the domicil of origin. But it cannot be doubted that the great current of American authority lays down the principle without qualification that a domicil once acquired by one sui juris is retained, even after abandonment, until another is acquired facto et animo, and no hint is given of any exception.*

The cases cited (by no means an exhaustive collection) are believed to establish the American doctrine in favor of the retention of the former domicil in all cases until another is acquired animo et facto.

2 Dicey, Confl. L. 117, 118; Udny v. Udny, L. R. 1 Sc. App. 441, 454. See also Story, Confl. I. § 48; The Venus, 8 Cr. 253.

3 Jac. Dom. § 201. See also Story, Confl. L. § 47.

Mitchell v. United States, 21 Wall. 350; Desmare v. United States, 93 U. S. 605; Allgood v. Williams, 92 Ala. 551, 8 So. 722; Lowry v. Bradley, 1 Speer's Eq. (S. C.) 1, 39 Am. Dec. 142; Price v. Price, 156 Penn. St. 617, 27 Atl. 291; City of Hartford v. Champion, 58 Conn. 268, 20 Atl. 471; Olson's Will, 63 Ia. 145, 18 N. W. 854; Hood's Estate, 21 Penn. St. 106; Williams v. Saunders, 5 Coldw. (Teun.) 60, 79, 80; Harvard College v. Gore, 5 Pick. (Mass.) 370; Shaw v. Shaw, 98 Mass. 158; Vischer v. Vischer, 12 Barb. (N. Y.) 640, 643. Indeed, in Harvard College v. Gore, supra, the court expressly disapproves such an exception.