CHAPTER XIX.

INTER-STATE LEGAL STATUS OF PERSONS.

I. RESIDENCE AND DOMICILE Defined and DistinguisH ED.
DOMICILE OF INFANTS, MINORS, AND ADULTS.

II.

III.

CITIZENSHIP - RIGHTS OF.

IV. LEGAL CAPACITY TO ACT.

I. RESIDENCE AND DOMICILE DEFINED AND DISTINGUISHED.

Residence. A mere residence is a place at which a person resides for a fixed or limited time, without intention of permanency of location. The limitation of time may be fixed by a definite period or term, or by expected future occurrences or circumstances, but nevertheless, accompanied by, as well as begun with, a fixed expectation of removal in the future, and not with the intention of remaining indefinitely.1

A person cannot have a residence in two different States or countries at the same time. But a person may have his domicile in one State, and at the same time a residence in another; the one in his permanent dwelling place, and the other his place of temporary abiding.3 The difference depends upon his intention, and that intention may be shown by his open declarations and acts, or in the absence of such, then by satisfactory circumstances, if such exist. If one so resort to two such places, under circumstances, and for times so indefinite as to render it otherwise not apparent which of the two is his domicile, then he

1 Brent v. Armfield, 4 Cr. C. C. 579; 2 Kent's Com. *430, note f.

2 Ibid.

Haggart v. Morgan, 5 N. Y. 422, 423; In re Thompson, 1 Wend. 45; Frost. Brisbin, 19 Wend. 11; Love v. Cherry, 24 Iowa, 204, 209. 4 Prentiss . Barton, 1 Brock. C. C. 289; Butler v. Farnsworth, 4 Wash. C.

C. 101; Case . Clarke, 5 Mas. 70;
Hylton v. Brown, 1 Wash. C. C. 298.

5 Tobin v. Walkinshaw, 1 McAllis ter, 186; Burnham v. Rangeley, 1 Wood. & M. 7; Butler c. Farnsworth, 4 Wash. C. C. 101; State v. Groome, 10 Iowa, 308; Love v. Cherry, 24 Iowa, 204.

has his own right of election in law to determine which of the two is his domicile. 1

In some of the States the ruling is, that the term residence, and permanent residence, or domicile, virtually are intended as the same thing, in reference to the necessity of a residence in judicial proceedings for a divorce, and in regard to the right to vote, as said terms are used in the laws of the States. That it must be such a residence as does not contemplate a removal, or as in the mind of the person is permanent, and not resorted to temporarily for a particular purpose. That is, that as used in the statute, it does not mean a mere abiding in the State to enable a party to bring himself within the mere letter of the term, or more circumscribed meaning thereof, as contradistinguished from domicile, but that in connection with proceedings for divorce, and right of suffrage, it means an abiding without intention to again depart from the State to reside elsewhere. And in this sense it is no doubt meant in proceedings of this description.

Domicile. By the term domicile is meant the place whereat a person makes his residence with intent to indefinitely there reside, without any expectation of removing in the future therefrom. Every domicile is necessarily a residence; but a residence is not necessarily a domicile. If in the mind of the person there abiding it is merely a temporary abiding place, for a given purpose and definite time, with expectation to then remove therefrom, then, although while there the party in the more broad acceptation of the term, may be said to there reside, yet not being by him regarded as his settled or permanent home, it is not in the general sense thereof or legal meaning of the term, his domicile.3 The latter may be somewhere else; this very principle was acted upon by the Supreme Court of Iowa, in Love v. Cherry, wherein a party was held to have had a domicile in Iowa, during several years' residence in Texas. 4

In Louisiana, the true principle as to the character of the resi dence essential to constitute a domicile of an adult, is laid down by Justice VOORHIES as follows: "The act of residence does not

'Burnham v. Rangeley, 1 Wood. & M. 7.

Hinds . Hinds, 1 Iowa, 36; State c. Minnick, 15 Iowa, 123.

Love v. Cherry. 24 Iowa, 204, 209; 2 Kent's Com. *130, note f.

4 24 Iowa, 204, 209.

alone constitute the domicile of the party, but it is the fact of residence coupled with the intention of remaining, which constitutes it." 1

Domicile Not Acquired by Coercion. Domicile is not acquired by constraint. If a person is forced from the country of his domicile and compelled to remain involuntarily in another, such constrained and enforced residence, no matter how long, will not make a change in his national domicile; on the contrary, his original citizenship and domicile remain to him with the rights thereof. To amount to an abandonment of domicile and country there must be the concurrence of act and will. original domicile remains until a new one is attained to.4

II. DOMICILES OF INFANTS, MINORS AND ADULTS.

The

Infants and Minors. The domicile of an infant of tender years, or during nurture, is that place which is the domicile of its mother, if the latter have charge of it. The domicile of the mother is that which is the domicile of the husband, if she has a husband and they are not permanently separated. If permanently separated, then she may acquire a domicile, if without one, for herself." The domicile of the minor children is that which is the domicile of the parents.8 If the latter be changed theirs is changed accordingly. The domicile of the parents is that place where they intentionally fix their residence with the expectation and purpose of there permanently dwelling.

A domicile once fixed remains such until another domicile be obtained, unless parted with and abandoned.10 If the husband and wife have acquired a domicile and the husband die, then the domicile still continues to be that of the wife, and of the minor children, if any, until a different one is legally acquired. 11 Marital Right. The marital rights of husband and wife who

1

marry in a State in which neither of them resides are regulated by the laws of the place of the husband's domicile,.1

2

Infants Born Abroad. The domicile of an infant born abroad is that which is at the time thereof the domicile of the parents, and so continues until their domicile is changed. And though by the rule laid down in Graham v. Monsergh,3 a bastard born in another State of a mother who has no domicile in Vermont at the time, cannot be affilliated therein under the statute concerning bastardy, yet if at the time of the birth of a bastard the mother be bona fide a resident of the State so as to have a domicile therein, but be temporarily absent in another State and the child there be born, then the remedy is under the statute of Vermont, and will lie in the courts of Vermont.4 And if the evidence of domicile is doubtful, yet tends to show a residence in the State where the proceedings are had, then the same is to go to the jury for their decision as a question of fact.

Domicile as Giving Benefit of Common Schools. The domicile of minor children being that which is their parents', it results that minor children of parents resident and fully domiciled in one State have no right to the benefits of the common schools of other States, and that parents cannot gain for them such a domicile as will entitle them to the privileges of such schools by merely sending them to reside with friends in such other State or States for the purpose of admission to the common schools thereof.

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." Such, in the language of the constitution itself, is given as the true definition of actual citizenship. "The citizens of each State are entitled to all the privileges and immunities of citizens in the several States." "8 There is recognized in the courts a constructive citi

'Land v. Land, 14 Sm. & M. 99. Warren v. Hofer, 13 Ind. 167; Keistand. Kuns, 8 Blackf. 345; Wheeler

v. Burrow, 18 Ind. 14.

8 22 Vt. 543.

4 Eggleston v. Battles, 26 Vt. 548.

5 Ibid.

Wheeler v. Burrow, 18 Ind. 14.
Art. 14, § 1, of Amendments to the

Const. United States.

Art. 4, § 2, Const. United States.

zenship which is satisfied by proof of actual permanent residence in a State in proceedings to remove suits from State to National courts, to the effect that the term citizen, as used in the act of Congress of September 24, 1789, in relation to the jurisdiction of the United States Circuit Court, and extending the same to a suit between a citizen of the State wherein the suit is brought and a citizen of another State, is construed to mean no more in that connection than that the parties shall be permanently resident, or domiciled, in their respective States. It is not necessary to jurisdiction in such cases that they be citizens in a political sense; actual residence is all that is required. It is also held that the designation includes private corporations as well as natural persons.

IV. LEGAL CAPACITY TO ACT.

In Personal Matters. It is a principle of universal law, or of what is sometimes regarded as the jus gentium, that the legal capacity of persons to act and to make contracts for themselves depends upon the law of the State or country where the transaction takes place, as to all personal matters, whether the subject matter contracted about or involved be within the State or without the State wherein the transaction occurs. 3

As to Real Property. But in reference to contracts about the sale and conveyance of land such capacity depends upon the laws of the State wherein the land is situated. This is the general ruling in America as to the law upon these subjects in whatsoever court the question may arise, domestic or foreign. This

Den v. Sharp, 4 Wash. C. C. 609; Evans v. Davenport, 4 McL. 574; Prentiss v. Barton, 1 Brock. 389; Read v. Bertrand, 4 Wash. C. C. 514; Shelton v. Tiffin, 6 How. 163.

* Louisville, Cin. & Charl. R. R. Co. v. Letson, 2 How. 497; Ohio & Miss. R. R. Co. v. Wheeler, 1 Black, 286; Marshall v. Balt & Ohio R. R. Co., 16 How. 314; French v. Lafayette Ins. Co., 5 McL. 461; New York & Erie R. R. Co. v. Shepard, 5 McL. 455.

363-373; Partee . Silliman, 44 Miss. 72; 2 Kent's Com. *429.

Huey's Appeal, supra; Kling e. Sejour, 4 La. Ann. 128; Clopton e. Booker, 27 Ark. 482; Barnum v. Barnum, 42 Md. 251; White . Howard, 46 N. Y. 144; Pell v. Miller, 11 Ohio St. 331; McCormick v. Sullivan, 10 Wheat. 102; Kerr v. Moon, 9 Wheat. 565; Hughes v. Hughes, 14 La. Ann. 85; 2 Kent's Com. * 429 and 4 Ibid. *441; Story's Conflict of Laws, § 424 et seq.