REPORTS OF CASES ARGUED AND DETERMINED IN THE SUPREME JUDICIAL COURT OF We have here the fifth volume of Mr. Allen's Reports, containing cases from October 1862, to January 1863, inclusive. The cases are many of them important, and are examined with a degree of care and study, both by court and counsel, which will render the volume valuable in other states, where similar questions arise. The reporter seems to have performed his part of the work with creditable thoroughness and ability. We are glad to feel that the credit of the long line of Massachusetts Reports is here so successfully maintained both by the decisions and the mode in which they are presented to the profession. We trust Mr. Allen will not long omit to present the point of his notes, at the beginning, in a single word or two. This involves some labor for the reporter, but it saves an immense amount, both of labor and perplexity, to the profession. I. F. R. 1857-1863. AN ANALYTICAL DIGEST OF THE LAWS OF THE UNITED STATES. The careful analysis of statutes and arrangement of their parts under the various titles of the law to which they refer, has long been known to the profession as not only the most scientific, but very much the most accessible and convenient for the working lawyer. This plan was a few years since applied by Mr. Brightly with great industry, accuracy, and skill, to the Statutes of the United States, and we have now a Supplement, bringing the digest down to the end of the session of 1863. The work is too well known to need extended notice, but we may add, that the present Supplement, comprising the laws passed from the commencement of the 35th, to the end of the 37th Congress, contains all the important legislation of the last three years upon the subject of the Rebellion. In addition to this, we have a reference, under each section, to all the cases and points decided under it, which, embracing as it does all the most recent published decisions, brings together an amount of information upon the present state of the law not obtainable in any other place without very great labor and much increased expense. These, with a table of cases cited, and an unusually full and accurate index, covering seventy large pages, make this work indispensable to every practising lawyer, especially, since the recent legislation in the Internal Revenue and other acts, has brought the law of the National Government so much more directly in contact with its citizens. J. T. M. THE AMERICAN LAW REGISTER. MARCH, 1864. DOMICIL. On the determination of one's domicil depend several important questions, as 1. The jurisdiction of the Surrogate and Probate Courts. 2. The right of exercising the elective franchise. 3. The liability to taxation and to military duty. 4. The jurisdiction of the Federal Courts as between citizens of different states. 5. National character, for purposes of trade, and in case of war. 6. The disposition of the personal property of the deceased. Says Chief Justice SHAW, in Abington vs. North Bridgwater, 23 Pick. 170: The fact of domicil is often one of the highest importance to a person; it determines his civil and political rights and privileges; it fixes his allegiance; it determines his belligerent and neutral character in time of war; it regulates his personal and social relations whilst he lives, and furnishes the rule for the disposition of his property when he dies." There is the national and the domestic domicil. Upon the former depends the law applicable to the person and personal rights, that invests him with a national character, and brings him under the dominion of the law of nations. The latter fixes his location within VOL. XII.-17 (257) the state or nation, and upon it depend certain municipal privileges and obligations, such as taxation, settlement, and voting; the jurisdiction of Surrogate and Probate Courts, and the ultimate disposition of one's personal property, when left undisposed of by will. The two should, as far as possible, be assimilated to each other. Much difficulty has been experienced in so defining the term domicil as to meet with general acceptance. Bynkershoek declined hazarding a definition. Vattel defined it to be the habitation fixed in any place, with an intention of always staying there;" but this has been complained of as too strict, if taken literally to govern in a question relating to voting. Another considers it synonymous with the word "home." Another able jurist, RUSH, in Guier vs. O'Daniel, 1 Binney 349, defines it to be-"A residence at a particular place, accompanied with positive or presumptive proof of continuing it an unlimited time." All jurists agree that where the domicil is not a necessary one, there must be both intention and fact to constitute it-the fact of actual residence, and the intention of continuing it for an indefinite period of time. The first inquiry that properly arises is whether certain terms, such as dwelling, home, inhabitant, resident, are to be regarded as synonymous with domicil, or in what respects they differ. The words residence, habitation, and home have, in different cases, received a different construction from that of domicil, as In the matter of Thompson, 1 Wend. 43; In the matter of Wrigley, 4 Wend. 602, and 8 Id. 134; Exeter vs. Brighton, 15 Maine 58. But all the distinctions thus taken depend less upon the words of the statutes than the purposes contemplated; and the term domicil in reference to the same subjects would have received the same construction. In some late cases, both in Massachusetts and New Hampshire, the terms "resident," "inhabitant," "having a dwelling or home," used in regard to voting, the settlement of paupers, and taxation, are declared to be synonymous with domicil, as understood at common law: Abington vs. North Bridgwater, 23 Pick. 170; Moore vs. Wilkins, 10 N. H. 452. The same doctrine has been substantially held in New Jersey and New York: The Stat vs. Ross, 3 Zabriskie 527; Crawford vs. Wilson, 4 Barb. Sup. Ct. Rep. 505; and in Isham vs. Gibbons, 1 Bradford 70, it is said that "these expressions should be construed in connection with the matter to which they are applied." The next inquiry that presents itself relates to what may be termed a necessary domicil, what it is, what its limitations, and its effect. It is a domicil without the possibility of change. Its limitations are the period of time during which the conditions continue. Its effect is to require proof of change after the conditions cease, or its further continuance is presumed. One instance of a necessary domicil is found in the fact of minority. The domicil of a legitimate unemancipated minor is that of his parents, or the survivor of them, and changes with it. In The School Directors vs. James, 2 Watts & Sergeant 571, it is held that no infant who has a parent, sui juris, can, in the nature of things, have a separate domicil. His domicil must necessarily be that of his parent in order to enable the latter to perform the duties which the law devolves upon him relating to the support, nurture, and education of his children. The minor presumptively has no will, and can therefore have no intention while the condition of minority continues. The parents' domicil is therefore necessarily and unavoidably that of the child. The exceptions to this are, 1. Where the parents remove their domicil to a different place, leaving the child permanently in the charge of another in the old domicil. That other then stands in loco parentis, with the assent of the parent. 2. Where the father has died, and the mother having remained and gone away with her husband, has left the child behind in the place of its birth. The reason of this is that the mother, by marrying again, has lost her old domicil and assumes that of her husband, while that of the children of the first marriage remains. unaltered. A child does not take the domicil of his step-father, or follow his mother's into it when she surrenders her own: Brown vs. Lynch, 2 Bradford 218. Whether in case of the death of the parents the regularly appointed guardian has the power of changing the minor's domicil, does not seem to be so clearly settled. The balance of authority, however, is in its favor: Holyoke vs. Harkins, 5 Pick. 20; Leeds vs. Freeport, 1 Fairfield 356, 2 Kent's Com. 227, note. Another instance of necessary domicil is that of a feme covert, which follows that of her husband: Greene vs. Greene, 11 Pick. 4, 11, 14, 15. This condition, however, terminates with the reason upon which it rests. When the union between the two ceases, and attitude of hostility against the other, a bill being filed for a divorce, the domicils of each may be different: Harteau vs. Harteau, 14 Pick. 181. the one assumes an A student attending an institution of learning is not understood to have thereby changed his domicil: 7 Mass. 1. So a lunatic or person non compos mentis, being deprived of the power of forming a rational intent, cannot change his domicil while that condition. continues, and the power of the committee, or guardian of a minor, appears to be the same in imposing a domicil, as that of a parent. It has been doubted whether under the civil law, the mother or guardian could change the domicil of a minor whose father was deceased, but as the former is, and the latter stands in loco parentis, there seems at common law to be little doubt in relation to it. A slave will necessarily follow the domicil of his master, but a servant who follows his master for a particular service is not thereby understood to have lost his domicil of origin: Dalhousie vs. MacDowall, 7 Clark & Finnelly 331. Another instance of a necessary domicil is that of a public officer, and if the office be conferred for the life of the holder, and be irrevocable, the law fixes his domicil in the places where its functions are to be discharged, and admits of no proof to the contrary. But if the office be of a temporary and revocable nature, the original domicil is not presumed to be changed. In reference to the former we have the important case of Bruce vs. Bruce, decided in the House of Lords, and reported in a note to Marsh vs. Hutchinson, in 2 Bosanquet & Puller 219. It was here held that as Mr. Bruce had entered into the India service, and not in the king's service, he was bound to reside in India, and could not reside elsewhere except by the leave of the Company, and, consequently, for a temporary purpose. Similar points are also exten |