"vail; for the country in which the property is would not "let it go out of that, until they knew under what rule it "is to be distributed. If it was in this country, they "would not give it up until it was found that he had a "domicil somewhere."

LX. It appears that the case suggested by the Master of the Rolls had occurred in France. In 1680, a question arose as to the succession to the Prince de Guémené. The Prince appears to have left an equal amount of moveables at his residence in Paris, and at his residence on his estate, at Verger, in Anjou. It must be presumed (for the statement in Merlin is meagre) that, in other respects, an equal attachment to both places was manifested. It was decided that the custom of each place should regulate the succession to the goods found therein; in other words, that the lex loci rei sita should prevail (q).

(q) Merlin, Rép. de Jurisp. tome viii. Domicile, s. 8.

CHAPTER VI.

CAN A MAN BE WITHOUT A DOMICIL ?

LXI. THE Roman law (a) answered this question by saying that it is difficult for anyone to be without a domicil. But even this might happen; if a person having abandoned his domicil, should make a journey by sea or land, seeking a place wherein to establish himself, he might be without a domicil. And Domat adopts this view of the case.

LXII. But a different view has been taken by other jurists (b), and especially by those of Great Britain and America. They hold that the former domicil is not abandoned until a new one has been intentionally and actually (animo et facto) acquired.

"A third rule I shall extract" (said the Master of the Rolls, in the case of Somerville v. Lord Somerville) "is, "that the Domicil of Origin is to prevail, until the party "has not only acquired another, but has manifested and "carried into execution an intention of abandoning his "former domicil, and taking another as his sole domi"cil" (c).

A British-born subject had been employed as American

(a) "Et verum est habere, licet difficile est ; quemadmodum difficile est, sine domicilio esse quemquam. Puto autem et hoc procedere posse, si quis domicilio relicto naviget vel iter faciat, quærens quo se conferat atque ubi constituat; nam hunc puto sine domicilio esse. [Domicilium autem habere potest et relegatus eo loci unde arcetur, ut Marcellus scribit.]"-Dig. lib. 1. t. i. 27, §§ 2, 3.

(b) Duranton, liv. i. t. cxi. s. 360; Story's Conflict of Laws, ch. iii. ; National Domicil, s. 47.

(c) 5 Vesey's Rep. p. 787.

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consul at the Cape of Good Hope (d), and was engaged in a house of trade there. A ship belonging to him was taken by a British cruiser, on her voyage from the Cape to Europe. It was contended that he was not a Dutch merchant, as he had intended to remove to America; but Lord Stowell said-"A mere intention to remove has never been held sufficient without some overt act; being "merely an intention, residing secretly and undistinguishably in the breast of the party, and liable to be revoked every hour. The expressions of the letter in which this "intention is said to be found are, I observe, very weak "and general, of an intention merely in futuro. Were "they even much stronger than they are, they would not "be sufficient; something more than mere verbal decla❝tion, some solid fact, showing that the party is in the "act of withdrawing, has always been held necessary in "such cases

(dd).

LXIII. The Original Domicil and the native character easily revert (e); and, therefore, it has been laid down. by the American (ƒ) Judges, that a person resumes his native character as soon as he puts himself in itinere to return to his native country; or, as Lord Stowell said of a belligerent, lurking under the disguise of a neutral, "the "sin of his old character is revived "(g).

And so in Munroe v. Douglas (h), it was said by the

(d) [The Cape of Good Hope was at that time in the hands of the Dutch.]

(dd) The President, 5 C. Rob. Adm. Rep. p. 279. See, also, the Falcon, 6 ib. p. 198.

(e) La Virginie, 5 ib. p. 99.

(f) This national character, which a man acquires by residence, may be thrown off at pleasure by a return to his native country, or even by turning his back on the country in which he has resided, on his way to another. It is an adventitious character gained by residence, and which ceases by non-residence; it no longer adheres to the party from the moment he puts himself in motion bonâ fide to quit the country, sine animo revertendi.--The Venus, 8 Cranch's (Amer.) Rep. p. 280. See, also, the St. Lawrence, 1 Gallison's (Amer.) Rep. p. 467.

(g) The Phonix, 3 C. Rob. Adm. Rep. p. 191. (h) 5 Maddock's Chancery Reports, p. 405.

English Vice-Chancellor, that an acquired domicil “re"mains until a subsequent domicil be acquired, unless the "party die in itinere (i) towards an intended Domicil." And in Colville v. Lauder it was observed, on the Scotch Bench, that when the deceased (a native of Scotland) was at St. Vincent's, his succession must have been regulated by the law of England; but after leaving that island, he must, in the whole circumstances, be considered as in transitu to Scotland (k).

LXIV (). A vagabond is said to be a person who, without travelling in quest of a domicil, has really and truly no certain domicil at all.

LXV. A familiar example occurs in the instance of Gipsies. In one of the cases recorded in Cochin, it appears that it was attempted to include a "comédien," a travelling player, under this class. Cochin, however, combatted

(i) Pothier seems to think that the change is not effectual till the actual arrival at the new place: "La volonté de transférer notre domicile dans un autre lieu doit être justifiée. Elle n'est pas équivoque lorsque c'est un bénéfice, une charge ou un autre emploi non amovible qui nous y appelle. En ce cas, dès que nous y sommes arrivés nous y acquérons domicile et nous perdons l'ancien.”—Introd. Gén. aux Cont 13.

(k) Morrison's Succession, App. i.; see this case below. Craigie v. Lewin, 3 Curteis' Ecclesiastical Reports, p. 445.

(1) Domat, liv. i. t. xvi. s. 9. So it was argued in the Duke of Guise's case, that, being exiled from France, he had no domicil where he served as a general; he would be a vagabond-which D'Aguesseau pronounced absurdum. See Vattel, liv. i. c. xix. s. 219, Des Vagabonds: "Les Vagabonds sont des gens sans domicile. Par conséquent ceux qui naissent de parents vagabonds n'ont point de patrie : puisque la patrie d'un homme est le lieu où, au temps de sa naissance, ses parents avaient leur domicile, ou l'État dont son père était membre alors, ce qui revient à la même chose car s'établir pour toujours chez une nation, c'est en devenir membre, au moins comme habitant perpétuel, si ce n'est point avec tous les droits des citoyens. Cependant on peut regarder la patrie d'un vagabond comme celle de son enfant, en tant que ce vagabond sera censé n'avoir pas absolument renoncé à son domicile naturel ou d'origine." This is little more than a repetition of Wolff's language, Jus Gentium, c. i. s. 245.

this doctrine, declaring that every man was born with a domicil, and that till he had acquired another animo permanendi, it would remain till his death (m).

LXVI. In the leading American case of Guier v. O'Daniel it was contended, among other things, that Thomas Guier, being a seafaring man, a sort of vagabond on the ocean, was without a domicil; but the Court held that his Domicil of Origin remained (n).

The rule is laid down by one of the latest writers upon Private International Law, that children of unknown parents must be considered as domiciled in the territory where they actually are: this is said to be a rule generally acknowledged and received (0).

(m) Cochin, Euvres, tome i. p. 20, pour Dame Louise Françoise de Samsons.

Carpzovius says, "Vagabundum nuncupamus eum qui nullibi

domicilium contraxit habitationis, ita ut nec forum sortiatur certum, originis verò domicilium si quis usque velit, parum efficiet si vagabundus ibidem non reperiatur, licet nec inficias eamus conveniri ipsum posse in domicilio naturali modo, copia ejus haberi queat, vel ex hoc ipso generali asserto: Vagabundum ubique conveniri, nec utitur exceptione incompetentiæ, qui est vagabundus" (tit. iii. art. i. s. 65; Processus Juris, &c.).

(n) Guier v. O'Daniel, 1 Binney's (Pennsylv.) Reports, p. 349, note; vide antè.

(0) Traité du Droit International Privé, &c., par M. Felix, liv. i. t. i. s. 28, note 1.