Evening star., 1915-01-04

De spreading and the Italians, who oc-
| cupied the seaport of Avlona, have sent
| battleship to Durazzo to protect Ital-
| ian interests at the Albanian port.
tual residence, il it appears that the
ADDRESS given corresponds to the al
ieged actual place, of abode Of the
party. 1t Is certainly competent as
| tending to establish that fact.
In submitting this evidence the court
| instructed the jury: You should take
into consideration all the evidence on
this intention to return, namely, what
ne did in Chicago, the manner in which
| he lived there, his activities, his name
appearing in the city directory, which,
while he said he was not responsible
| Tor it, Is an evidentiary fact Of some
| Importance, though not great. to my
mind. 1 also give little Weight, and /
| think you should give little weight, to
the mere question of registration in
the hotel registers from different cit
les 1t is fact to be considered, but
| IN determining his intention to return
I've agree with the court below that
the evidence had little or no Importance
In determining the intention of relator
| to return. but its effect would be different
on the question Of actual residence. Re-
spondent, however, is not in position to
complain Of this instruction, since no OBJ
jection was interposed to the admission
OF the evidence upon which the instruc-
ton was based. Being before the jury
disposed of the evidence in a much less
preJudicial manner to relator than was
possible under the view we entertain of
ITS competency and relevancy to the prin-
cipal issue in the CASE
~ The Chief Point. -.
"a more difficult question is presented
In the refusal Of the court to instruct a
verdict for respondent. Counsel for re-
spondent requested an instruction to this
effect at the conclusion of relators testi-
mony, and renewed it when the evidence
in full was concluded. Exception to the
ruling OF the court was taken, and this
presents the chief question in the case
| 1t goes directly to the right of respondent
to hold the Office to which he has been
appointed. The proposition is squarely
presented, whether or not respondent was
an actual resident Of the District of
Columbia for three years prior to his
appointment 1t involves the difficult
| task OF drawing the distinction Cif, in
deco, 1t can be done from the confusion
of opinion) between domicile and resi-
dence.
The most accurate definition of DOM
iciie to which our attention has been
called is contained In Mitchell agt
United States. 81 Wall. $50, where the
court approves the definition from
which it is defined as a residence at a
particular place accompanied with pos
tive or presumptive proof of an inten-
tion to remain there for an unlimited
time
The court then defines it more elab-
orately. as follows: BY the term dom
icile. in its ordinary acceptation, is
meant the place where a person lives
and has his home. The place where a
person lives Is taken to be his domicile
until facts adduced establish the con-
trary. A domicile once acquired
Is presumed to continue until it is
shown to have been changed Where
change Of domicile is alleged the bur
den of proving it rests upon the per
son making the allegation.
New Domicile.
"To constitute the new domicile two
things are Indispensable: First, resi-
dence in the new locality; and, second,
the intention to remain there. The
change cannot be made except facto ct
amino. Both are alike necessary.
Either without the other is insufficient.
ever long continued. cannot work the
ch-nge. There must be the animus to
change the prior domicile for another.
Until the new one is acquired, the old
one remains. These principles are AK
iomatic in the law upon the subject
1T will be observed that to establish
domicile two things are indispen-
sable, residence, and the intention to
remain permanently at the place where
residence is established. 1t logically
residence without the intention of es-
tablishing domicile. but without the
intention, In conjunction with the res
idence, there is no domicile. And when
ini1 id to oh
absence from it will not effect a
change. There must exist the inten-
tion before q change can be effected.
In other words. residence may exist
without establishing a domicile but
domicile cannot be established without
residence. Residence may be separated
from the domicile, and the domicile
still remain.
Evidence Of Domicile.
"But where the retention Of domicile
depends exclusively upon the intention
to return at some indefinite time and
resume residence. we think such in
tention must be evidenced by some-
thing more than a mere mental con-
cept: it must be coupled with some out
ward manifestation Indicative of a
fixed purpose. In other words, a mere
floating intention to return is not suf-
ficient to retain domicile.
"If a person has actually removed to
another place. with an intention of re-
naming there for an indefinite time.
and as a place Of fixed present domiciIe.
it is to be deemed his place of domicile,
notwithstanding he may entertain a
floating intention to return at some fu-
ture period Story on Conflict of Laws,
section 46. See also Bradstreet VS.
Bradstreet. 1s D. c., 229; Ringgold VS..
Bailey, Md, 1S6.
"Where a person moves from his dom
icile and leaves nothing behind indi-
eating an intention to return, and es-.
tablishes a fixed place of abode for