Lead Opinion
— Thе question presented upon the record, has always been cоnsidered one of great moment, and has given rise to much discussion, and ingеnious, subtle, reasoning, both in the civil and common law. It appears, however, to be well settled, that when a domicil has been acquired, it is nоt lost, until a new one is actually gained, facto et animo. The mere intention to change the domicil, without an actual removal, with the intention of remaining, doеs not cause a loss of the domicil.
Here the facts were, that thе defendant, being domiciled in Georgia, came to this State, with the design оf settling here, and manifested his intention of making this State his permanent residence, by leasing a piece of land, procuring materials for thе erection of a foundry, and going to Georgia to bring his family. These acts all mark, unequivocally, his intention to change his residence, from Georgia to this State. These facts, however, are not sufficient to cаuse a loss of the domicil he previously had. If, on his return to Georgia, hе had died before being able to carry his purpose into effeсt, it can admit of no doubt, the Courts of Georgia, and not of this State, would have been entitled to distribute his estate. The same rule must have prevаiled, if he had died upon the journey here, because until he had actually reached here, there would have been no change in fact, of the domicil. In one case indeed, the intention to remove, has the effect to change the domicil — where one, by residence, has acquired a domicil, different from that of his birth, and with intention to resume his former domicil, sets out on his return. In that case, it has been held, that the domicil, is rе-acquired, from the time he manifests such intention. [The Venus,
The charge of the Court, therefore, upon the facts was strictly correct, and its judgment must be affirmed.
Dissenting Opinion
dissenting. — I am not disposed to question the correctness of the principles upon which the decision of the Court is founded; but I think they are mistakenly applied to the case beforе us. The peculiar condition of all new countries is such, that the factum of domiсil, or residence, is essentially different from what it is in an older country, or a city. The domus, in the first instance, is either a tree top or a mere hovel, and the hammer of the artizan and the axe of the woodman must, in most сases, precede the removal of the family of the settler. His dutiеs as a citizen commence with his first preparatory act of settlement, and after ten days actual residence, he may be compelled to defend the home which he is preparing. If the duties of citizenship are thus imposed on him, I can see no reason why his privileges should not date from the same period, if they became perfect by a continuation of residence for the required time.
I think it should havе been put to the jury to determine from the evidence before them, whether the acts done by Mr. Hallett, with relation to his foundry, were performed with the intention to make a permanent residence amongst us, and if they so found them, that his residence commenced with the first act, independent of the then domicil of his family.