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In assigning a constructive domicil, the law will weigh the circumstances of the case, the probabilities as to the party's regarding one or another place as his home, should he exercise a choice, and the duty he may be under to abide at a particular spot. From these data the law raises certain presumptions more or less strong. It should be noticed that it is the law that raises these presumptions, not the courts. Hence they are not so liable to change, with the slightly varying circumstances of each particular case, and are susceptible of being reduced to more or less stable rules. The courts have no other power than to decide the questions thus raised in accordance with the rules and presumptions fixed by the law.

Thus, an infant is assigned the domicil of its parent, though it be born elsewhere and has never been within their domicil.1 Here the law conclusively presumes that the home of the child will be with its parents, without regard to the facts of a particular case, and hence wherever their permanent home is his will be also.

So, where a woman marries, the law regards her as identified with her husband, and recognizes a duty resting upon her to live with him. Hence the law presumes her proper home to be with him, and his domicil becomes hers upon the marriage. And thereafter throughout their married life her domicil changes with his, as a general rule, regardless of the actual facts in the case.2

The instances mentioned have been cases of persons non sui juris, but the principle of constructive domicil is not confined to them. Thus, if a full grown man should abandon his native country, intending never to return, his domicil is not thereby lost or changed. It is a well settled principle of law that a domicil is retained until a new one is acquired, for no person can ever be without a domicil. A new domicil, in the case of a person sui juris, can only be acquired by actual residence in the new country, coupled with the intention to remain there permanently. Hence, until he actually takes up his abode else

1 Post, §§ 32, 36 et seq.

8 Post, § 29.

2 Post, §§ 46 et seq.
4 Post, §§ 56 et seq.

By

where animo manendi, he retains his former domicil. construction of law he is presumed still to have his home in his original domicil, though he has turned his back upon his country for ever."

§ 27. Certain General Principles touching Domicil. — I. No Person without a Domicil. — There are four general principles relating to domicil which must be borne in mind throughout every discussion of this subject. With their aid, many problems. otherwise difficult may be easily solved.

The first of these may be thus stated: No natural person can c ever be without a domicil.1

For the purpose of determining rights and liabilities, thecourts of all civilized nations have formulated the rule that a person must always be held to have a domicil somewhere. He may be homeless in the ordinary and popular sense of the word, he may be a vagrant, but legally he will always be deemed to have his domicil in some country.2

8

Thus, in Shaw v. Shaw, the facts were that Shaw and his wife, domiciled in Massachusetts, determined to remove to Colorado. They left Massachusetts, not expecting to return, and proceeded as far as Philadelphia. There they stopped temporarily, and during their stay there Shaw was so cruel to his wife that, in fear of her life, she left him and returned to Massachusetts, where she applied for a divorce. Shaw never returned thither. Though fully recognizing the principle that a divorce should only be granted upon the application of one domiciled within the State, the court granted the application.

See post, § 29.

I Abington v. N. Bridgewater, 23 Pick. (Mass.) 170, 177; Crawford v. Wilson, 4 Barb. (N. Y.) 505, 518; Dupuy v. Wurtz, 53 N. Y. 556; Desmare v. United States. 93 U. S. 605; Otis v. Boston, 12 Cush. (Mass.) 44; `Shaw v. Shaw, 98 Mass. 158; Allgood v. Williams, 92 Ala. 551, 8 So. 722; Gilman v. Gilman, 52 Me. 165, 83 Am. Dec. 502; Ayer v. Weeks, 65 N. H. 248, 18 Atl. 1108; De La Montanya v. De La Montanya, 112 Cal. 101, 32 L. R. A. 82, 53 Am. St. Rep. 165; Tipton v. Tipton, 87 Ky. 243, 8 S. W. 440; White v. Tennant, 31 W. Va. 790, 8 8. E. 596.

2 See Lowry v. Bradley, 1 Speer's Eq. (S. C.) 1, 39 Am. Dec. 142; Borland v. Boston, 132 Mass. 89, 42 Am. Rep. 424; Shaw v. Shaw, 98 Mass. 158.

898 Mass. 158.

4 Post, § 50.

Neither the husband nor wife had acquired a domicil elsewhere, and in the language of the court, "Every one must have a domicil somewhere."

Indeed, the authorities go a step further and lay down the proposition that not only must a person always have a domicil somewhere, but he must further be deemed to be domiciled in some civilized State or at least in a State sufficiently civilized to possess a perfected system of law. Such will certainly be the rule in respect to persons who have once been citizens of a civilized country. The reasons for this last qualification are quite evident. Not only is it generally true in cases where a citizen of a civilized community has exiled himself in this manner, that he does not intend to settle permanently in a barbarous country, but even should such an extraordinary intent dominate his mind, public policy and the safety of the individual alike require that he should be presumed not to have intended to surrender the protection and benefits secured by his home laws in exchange for the barbarous customs of the savages among whom he lives.

§ 28. II. Only one Domicil at a Time. The second of these principles may be thus stated: No natural person can have more than one domicil at a time.1

It is the settled doctrine both in England and America that one cannot have more than one domicil at the same time for the

5 Thus there are numerous English cases in which citizens of England or Scotland have been held to retain their original domicils, though passing their lives in India or China. Dicey, Confl. L. 88, 149; Bruce v. Bruce, 2 B. & P. 229; Jopp v. Wood, 4 DeG., J. & S. 616.

6 Dicey, Confl. L. 733, 734.

1 This is the form in which this proposition is usually stated, but it is subject to a qualification. It is true that no one court or no one jurisdiction will consider a person domiciled in more than one place at a time. But it is quite possible that the court of one State may adjudge a person to be domiciled therein at a given time, while the court of another State, before whom the same question may be pending, may hold him to be domiciled in the second State at that time. Such a position has been asserted by the Massachusetts court in passing upon the domicil of an insane person under guardianship there, who takes up his abode in another State, where he is adjudged sane and capable of selecting his own domicil. Talbot v. Chamberlain, 149 Mass. 57, 60, 3 L. R. A. 254.

same purpose. But it is sometimes said or intimated that a person may have one domicil for one purpose, and, at the same time, other domicils for other purposes. These dicta (for they are nothing more) Mr. Dicey explains as being the result of confusion of thought with respect to the terms "domicil" and "residence," domicil being used in these cases to designate different kinds of residence. He maintains with great earnestness that no person can have more than one domicil at a time for any and all purposes, and in this he is supported by strong authority.* Indeed, it may be accepted as generally true that no natural person can have more than one domicil at one and the same time, even for different purposes, using the word "domicil" in its technical sense as importing not merely residence, but residence for an unlimited period."

But to this general rule there is one exception, or at least an apparent exception, in the case of a married woman suing in one jurisdiction for divorce from her husband, domiciled in another State or country. In such case, notwithstanding the rule of law that the wife's domicil follows that of her husband, and the other rule, no less authoritative, that a suit for divorce must be brought in the domicil of the complainant, it is now generally admitted that a wife may acquire a domicil apart from

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2 Abington v. N. Bridgewater, 23 Pick. (Mass.) 170, 177; Otis v. Boston, 12 Cush. (Mass.) 44; Ayer v. Weeks, 65 N. H. 248, 18 Atl. 1108; Crawford v. Wilson, 4 Barb. (N. Y.) 505; Dupuy v. Wurtz, 53 N. Y. 556; Allgood v. Williams, 92 Ala. 551, 8 So. 722; Gilman v. Gilman, 52 Me. 165, 83 Am. Dec. 502; In re Olson's Will, 63 la. 145, 18 N. W. 854; Somerville v. Somerville, 5 Ves. 750.

See Dupuy v. Wurtz, 53 N. Y. 556; Allgood v. Williams, 92 Ala. 551, 8 So. 722; Gilman v. Gilman, 52 Me. 165, 83 Am. Dec. 502; De La Montanya v. De La Montanya, 112 Cal. 101, 32 L. R. A. 82, 85; White v. Tennant, 31 W. Va. 790, 8 S. E. 596; Abington v. N. Bridgewater, 23 Pick. (Mass.) 170, 177; Hallett v. Bassett, 100 Mass. 167; Greene v. Greene, 11 Pick. (Mass.) 409, 415.

Dicey, Confi. L. 96, 97; Story, Confl. L. § 45, note (a); Jac. Dom. §§ 91, 92.

5 Jac. Dom. §§ 91, 92; Otis v. Boston, 12 Cush. (Mass.) 44; Price v. Price, 156 Penn. St. 617, 27 Atl. 291; De La Montanya v. De La Montanya, 112 Cal. 101, 32 L. R. A. 82, 85, 53 Am. St. Rep. 165.

6 Post. § 46.

7 Post, § 50.

her husband for the purpose of instituting a suit for divorce. If she does not desire a divorce, her domicil remains in general the same as her husband's and changes with his. This principle appears to give the wife one domicil for the purpose of divorce, and a different domicil (at the same time) for all other purposes. The incongruity of this result has even led one court to deny the well nigh universally admitted rule that jurisdiction of divorce is governed by the domicil of the complainant, and not by his or her mere residence.

But upon a close examination it will probably be found that there is little or no real incongruity here. After the wife has instituted the suit, if then a question should arise which would make it needful to fix her domicil for any purpose, she would probably be held to have acquired a domicil apart from her husband for all purposes. Until she sues for divorce she has but one domicil for any purpose, - that of her husband. After she institutes the suit in a foreign jurisdiction, she still has only one domicil for any purpose, the one she has voluntarily chosen as the locality in which she wishes to obtain her

divorce. Suffor deerce refused?

§ 29. III. Domicil retained until another is acquired. The third general principle relating to domicil is as follows: A domicil once acquired is retained until a new domicil is gained.1

This principle is but the logical and necessary consequence of the two preceding ones. If one can never be without a domicil, and can never have but one domicil at a time, it must fol

8 Post, § 50.

9 De La Montanya v. De La Montanya, 112 Cal. 101, 32 L. R. A. 82, 85, 53 Am. St. Rep. 165.

1 Abington v. N. Bridgewater, 23 Pick. (Mass.) 170, 177; Dupuy v. Wurtz, 53 N. Y. 556; Hallett v. Bassett, 100 Mass. 167; Borland v. Boston, 132 Mass. 89, 42 Am. Rep. 424; Desmare v. United States, 93 U. S. 605; Mitchell v. United States, 21 Wall. 350; Shaw v. Shaw, 98 Mass. 158; Allgood v. Williams, 92 Ala. 551, 8 So. 722; Price v. Price, 156 Penn. St. 617, 27 Atl. 291; Gilman v. Gilman, 52 Me. 165, 83 Am. Dec. 502; Williams v. Saunders, 5 Coldw. (Tenn.) 60; Firth v. Firth, 50 N. J. Eq. 137, 24 Atl. 916; Lowry v. Bradley, 1 Speer's Eq. (S. C.) 1, 39 Am. Dec. 142, 144; Shepherd v. Cassiday, 20 Tex. 24, 70 Am. Dec. 372, 373; Hart v. Lindsey, 17 N. H. 235, 43 Am. Dec. 597, 601, 602; Somerville v. Somerville, 5 Ves. 750.