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"of Administration on her estate granted by the Probate "Judge of Suffolk were void for want of jurisdiction. It "was strongly urged that, upon the facts, the legal domi"cil of Miss Elliot still continued in Boston (Suffolk County), the place of her birth, notwithstanding her "removal to Natick, in the county of Middlesex, and her "long residence there, because, by reason of her mental "disability, she had not, it was said, the power to acquire a new domicil. The opinion of the Court in that case "was delivered by Wilde, J., in which he says: It is clear "that, by our law, a guardian has the same power over "his ward that a parent has over his child. He has the "custody of his person, and may appoint the place of his "residence. The domicil, therefore, of an idiot may be "changed by the direction or with the assent of his 'guardian, whether expressed or implied""(k).

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V.

NECESSARY DOMICIL-THE SERVANT.

CXL. We have now to consider the case of the Servant. A combination of fact and intention has been said to be necessary for the constitution of a Domicil, and this principle would seem to preserve to the domestic servant the Domicil which he possessed before entering into service.

CXLI. According to Voet, however, the presumption founded on experience is, that the domestic servant has abandoned his native domicil without any intention of returning to it; and, therefore, has acquired another domicil, which must be the domicil of the master with whom he is living. He likens the case of servants to that of tutors, who, he thinks, acquire the domicil of the pupils with whom they reside, and to that of the freed men (liberti) among the Romans, who acquired the domicil of their patrons;

(k) Wharton, ch. ii. s. 52, p. 58.

between these freed men and the modern domestic servant Voet conceives a very close analogy to subsist (l).

CXLII. But it is a question much depending upon the particular circumstances of each case. If a servant, having quitted his domicil of origin, remains for a long period of time at one particular place in the employment of several masters, and has collected together in that place his earnings, the legal presumption would be the abandonment of the original, and acquisition of a new domicil. But a contrary presumption would flow from the circumstances of his having been known to return several times to the place of his birth in the interval of his servitudes to different masters, and of his having deposited his savings and property there; the intention of preserving his original domicil would be fairly deducible from this conduct.

CXLIII. Claude Doumayron, born near Rhodès, quitted his country soon after the death of his father, and came to Paris. He remained there for twenty years in the capacity of servant to the Sieur Bergeret, and in that service he died. The question was, whether the succession to his personalty (la succession mobiliaire) should be ruled by the custom of Paris or by the Roman Law (droit écrit). He was holden to have been domiciled at Paris. The number

(1) "Famulos ancillasque nostrates quod attinet, etsi liberi sint et certâ mercede conducti nobis operas præstent, nec familiæ nostræ perpetuò addicti sint; tamen vix est ut existimemus eos proprium retinere domicilium, quippe à quo plerumque eos secedere animo non revertendi experientia testatur. Quin potiùs eos ex domicilio domini cui ministrant censeri, et competens sortiri forum suadent juris rationes: si enim nuncii scholarium ac ministri cum scholaribus studiorum causâ degentes, ex personâ eorum, quibus ministrant forum sortiantur privilegiatum, et ex quali quali domicilio ac jure scholarium in loco studiorum æstimentur (auth. habita C. ne filius pro patre), cur non, cessante illo foro privilegiato, in loco domicilii dominici propriè sic dicti convenirentur, ratio non est. Cui accedit quod et liberti Romani, utcunque liberi, patronorum suorum non originem modo sed et domicilium sequebantur ; quos tamen in obsequiis et operis præstandis non longè a famulis hodiernis abiisse constat," &c. J. Voet, lib. v. t. i. 96.

of years and the uninterrupted residence seem to have been the foundation of this decision of the French tribunal (m).

CXLIV. Nicolas Sautereau had his domicil of origin in Burgundy; he came to Paris while a minor: during his stay there he served as a kind of steward (régisseur) to different masters, but especially the family of Bonnelles. He was sent by one of his masters, in that capacity, to Ferraques, near Lisieux, and there he died. Five advocates decided that he had never lost his domicil of origin, and that his succession must be regulated by the custom of Burgundy, because the nature of his employments at Paris and Ferraques was not such as to acquire for him a domicil. "He lived" (they said) "by his masters' wages, was subject “to their wills, and was under the necessity of following them whithersoever they went." He had, in fact, never enjoyed a state of liberty requisite to enable him to found a domicil (n).

CXLV. An ancient custom exempted all persons domiciled at Nevers (o) from the payment of certain duties in the trade of corn and wine. Berger, a domestic servant of a lady, and Berthaut, who acted in the same capacity to a religious order of the community, claimed this exemption. The Advocate-General, however, unhesitatingly pronounced against their claim upon the ground that, as domestic servants, they could not have acquired any domicil. His opinion was confirmed by an "arrêt" of Parliament with respect to Berger. With respect to Berthaut, they allowed him one month to prove-1stly, that when the demand for duty was made upon him, he was actually domiciled at Nevers; 2ndly, that he paid the "taille; " 3rdly, that he was married and had a wife and children; 4thly, that he had always traded in corn and wine; and in the event of

(m) Denisart, tome vi. Domicile, II. s. 3 (p. 662, ed. 1787).
(n) Denisart, ibid.

(0) Merlin, Rép. de Jur. Domicile IV. s. 2.

his failing in such proof, they confirmed the sentence of the Advocate-General (p).

CXLVI. The Code Civil expressly declares that every person of full age who is in the habit of acting as a servant or a workman to another, if he reside in the same house as his master, shall be holden to be domiciled therein (9).

CXLVII. According to the Prussian Law and to Savigny, hired servants (Dienstboten-serviteurs à gages), day labourers on an estate (auf einem bestimmten Landgute bleibend arbeitende Tageslöhner-journaliers constamment occupés dans un domaine rural), apprentices to a particular master (bei einem bestimmten Handwerksmeister arbeitende Gesellenouvriers qui exercent leur métier chez un maître) have the domicil of their employers (r).

CXLVIII. The slave, of course, would have no domicil but that of his master, but the manumitted person was holden by the Roman Law to have acquired the domici of the manumittor (s).

(p) It was said by the Attorney-General, in the case of the Countess of Dalhousie v. M'Douall, that a servant who followed his master for a particular service, did not thereby lose his domicil of origin.— 7 Clark & Finnelly's Reports, p. 331.

(q) Art. 109. "Les majeurs qui servent ou travaillent habituellement chez autrui, auront le même domicile que la personne qu'ils servent ou chez laquelle ils travaillent, lorsqu'ils demeureront avec elle dans la même maison."

(r) Savigny, R. R. viii. s. 353.

Cf. Preussische allgem. Gerichtsordnung, Theil I. tit. ii. § 13. [Cf. Dutch Civil Code, tit. iv. art. 79: "Meerderjarige dienstboden of werklieden hebben hunne woonplaats in het huis van diegenen, bij welke zij dienen of werken, indien zij bij dezelve inwonen."]

(s) Dig. lib. 1. t. i. 27, which says, "Ejus qui manumisit municeps est manumissus, non domicilium ejus sed patriam secutus." Lex 22 says, "Filii libertorum libertarumque, liberti paterni et patroni manumissoris, domicilium aut originem sequuntur."- "Cives quidem origo, manumissio, allectio, vel adoptio, incolas vero domicilium, facit."-Code, lib. x. t. xxxix. 7.

CHAPTER XI.

VI. NECESSARY DOMICIL-THE PUBLIC OFFICER.

CXLIX. So much was the liberty of the freeman to choose his own domicil respected by the Roman Law, that it was not allowed to be restrained by any act of another private individual (a). If a legacy was left to a freeman on condition that he fixed his domicil in a particular civitas, the condition was set aside (b).

CL. But it was fully competent to the Law of the State, or the Public Law, to place restrictions upon this liberty; and the Roman Law-followed in this, as well as in other regulations relating to Domicil, by modern Law-has affixed a particular domicil upon certain public servants (c) of the State, and upon certain criminals (d).

CLI. This leads us to consider the domicil of the Public Officer of the State. The existing French Code has laid down the following rules respecting the domicil of the

(a) "Nihil est impedimento quo minus quis ubi velit habeat domi cilium quod ei interdictum non sit.”—Dig. lib. 1. t. i. 31.

(b) "Titio centum relicta sunt ita, ut a monumento meo non recedat, vel uti in illâ civitate domicilium habeat. Potest dici non esse locum cautioni, per quam jus libertatis infringitur. Sed in defuncti libertis alio jure utimur."-Dig. lib. xxxv. t. i. 71, § 2.

(c) "Miles ibi domicilium habere videtur ubi meret, si nihil in patriâ possideat.”—Dig. lib. 1. t. i. 23, § 1. Vide antè as to meaning of this word patriâ, § xxxiii. n. (k); § xxxix. n. (i).

(d) "Relegatus in eo loco, in quem relegatus est, interim necessarium domicilium habet."-Dig. lib. 1. t. i. 22, § 3.