DISTRIBUTION. By this term is understood the division of an
intestate's estate according to law.
2. The English statute of 22 and 23 Car. II. c. 10, which was itself probably
borrowed from the 118th Novel of Justinian, is the foundation of, perhaps, most
acts of distribution in the several states. Vide 2 Kent, Com. 342, note; 8 Com.
Dig. 522; 11 Vin. Ab. 189, 202; Com. Dig. Administration, H.
DISTRIBUTIVE JUSTICE. That virtue, whose object it is to distribute
rewards and punishments to every one according to his merits or demerits. Tr. of
Eq. 3; Lepage, El. du Dr. ch. 1, art. 3, §2 1 Toull. n. 7, note. See
DISTRICT. A certain portion of the country, separated from the rest
for some special purposes. The United States are divided into judicial
districts, in each of which is established a district court; they are also
divided into election districts; collection districts, &c.
DISTRICT ATTORNEYS OF THE UNITED STATES. There shall be appointed, in
each judicial district, a meet person, learned in the law, to act as attorney of
the United States in such district, who shall be sworn or affirmed to the
faithful execution of his office. Act of September 24, 1789, s. 35, 1 Story's
2. His duty is to prosecute, in such district, all delinquents, for crimes
and offences cognizable under the authority of the United States, and all civil
actions in which the United States shall be concerned, except in the supreme
court, in the district in which that court shall be holden. Ib.
3. Their salaries vary in different districts. Vide Gordon's Dig. art. 403.
By the Act of March 3, 1815, 2 Story's L. U. S. 1530, district attorneys are
authorized to appoint deputies, in certain cases, to sue in the state courts.
See Deputy District Attorney.
DISTRICT COURT. The name of one of the courts of the United States. It
is held by a judge, called the district judge. Several courts under the same
name have been established by state authority. Vide Courts of the United
DISTRICT OF COLUMBIA. The name of a district of country, ten miles
square, situate between the states of Maryland and Virginia, over which the
national government has exclusive jurisdiction. By the constitution, congress
may " exercise exclusive jurisdiction in all cases whatsoever, over such
district, not exceeding ten miles square, as may, by, cession of particular
states, and the acceptance of congress, become the seat of government of the
United States." In pursuance of this authority, the states of Maryland and
Virginia, ceded to the United States, a small territory on the banks of the
Potomac, and congress, by the Act of July 16, 1790, accepted the same for the
permanent seat of the government of the United States. The act provides for the
removal of the seat of government from the city of Philadelphia to the District
of Columbia, on the first Monday of December, 1800. It is also provided, that
the laws of the state, within such district, shall not be affected by the
acceptance, until the time fixed for the removal of the government thereto, and
until congress shall otherwise by law provide.
2. It seems that the District of Columbia, and the territorial districts of
the United States, are not states within the meaning of the constitution, and of
the judiciary act, so as to enable a citizen thereof to sue a citizen of one of
the states in the federal courts. 2 Cranch, 445; 1 Wheat, 91.
3. By the Act of July 11, 1846, congress retroceded the county of Alexandria,
part of the District of Columbia, to the state of Virginia.
DISTRINGAS, remedies. A writ directed to the sheriff, commanding him
to distrain one of his goods and chattels, to enforce his compliance of what is
required of him, as for his appearance in a court on such a day, and the like.
Com. Dig. Process, D 7; Chit. Pr. Index, h. t. Sellon's Pr. Index, h. t.; Tidd's
Pr. Index, h. t. 11 East, 353. It is also a form of execution in the action of
detinue, and assize of nuisance. Registrum Judiciale, 56; 1 Rawle, 44, 48; Bro.
Abr. pl. 26; 22; H. VI. 41. This writ is likewise used to compel the appearance
of a corporation agregate. 4 Bouv. Inst. n. 4191.
DISTURBANCE, torts. A wrong done to an incorporeal hereditament, by
hindering or disquieting the owner in the enjoyment of it. Finch. L. 187; 3 Bl.
Com. 235; 1 Swift's Dig. 522; Com. Dig. Action upon the case for a disturbance,
Pleader, 3 I 6; 1 Serg. & Rawle, 298.
DIVIDEND. A portion of the principal, or profits, divided among
several owners of a thing.
2. The term is usually applied to the division of the profits arising out of
bank or other stocks; or to the division, among the creditors, of the elects of
an insolvent estate.
3. In another sense, according to some old authorities, it signifies one part
of an indenture. T. L.
DIVISIBLE. The susceptibility of being divided.
2. A contract cannot, in general, be divided in such a manner that an action
may be brought, or a right accrue, on a part of it. 2 Penna. R. 454. But some
contracts are susceptible of division, as when a reversioner sells a part of the
reversion to one man, and a part to another, each shall have an action for his
share of the rent, which may accrue on a contract, to pay a particular rent to
the reversioner. 3 Whart. 404; and see Apportionment. But when it is to do
several things, at several times, an action will lie upon every default. 15
Pick. R. 409. See 1 Greenl. R. 316; 6 Mass. 344. See Entire.
DIVISION, Eng. law. A particular and ascertained part of a county. In
Lincolnshire, division means what riding does in Yorkshire.
DIVISION OF OPINION. When, in a company or society, the parties having
a right to vote are so divided that there is not a plurality of the whole in
favor of any particular proposition, or when the voters are equally divided, it
is said there. is division of opinion.
2. In such a case, the Roman law, which seems founded in reason and common
sense, directs, that when the division relates to the quantity of things
included, as in the case of a judgment, if one of three judges votes for
condemning a man to a fine of one hundred dollars, another, to one of fifty
dollars, and the third to twenty-five, the opinion or vote of; the last shall be
the rule for the judgment; because the votes of all the others include that of
the lowest; this is the case when unanimity is required. But when the division
of opinions does not relate to the quantity of things, then it is always to be
in favor of the defendant. It was a rule among the Romans that when the judges
were equal in number, and they were divided into two opinions in cases of
liberty, that opinion which favored it should prevail; and in other cases, it
should be in favor of the defendant. Poth. Pand. liv. L. n. MDLXXIV.
3. When the judges of a court are divided into three classes, each holding a
different opinion, that class which has the greatest number shall give the
judgment; for example, on a habeas corpus, when a court is composed of four
judges, and one is for remanding the prisoner, another is for discharging him on
his own recognizance, and two others for discharging him absolutely, the
judgment will be, that he be discharged. Rudyard's Case, Bac. Ab. Habeas Corpus,
B 10, Court 5.
4. It is provided, by the Act of Congress of April 29, 1802, s. 6, that
whenever any question shall occur before a circuit court, upon which the
opinions of the judges shall be opposed, the point upon which the disagreement
shall happen shall, during the same term, upon the request of either party, or
their counsel, be stated, under the direction of the judges, and certified,
under the seal of the court, to the supreme court, at their next session to be
hold thereafter, and shall, by the said court, be finally decided. And the
decision of the supreme court, and their order in the premises, shall be,
remitted to the circuit court, and be there entered *of record and shall have
effect according to the nature of the said judgment and order: Provided, That
nothing herein contained shall prevent the cause from proceeding, if, in the
opinion of the court, further proceedings can be had without prejudice to the
merits: And Provided, also, That imprisonment shall not be allowed, nor
punishment in any case be inflicted, where the judges of the said court are
divided in opinion upon the question touching the said imprisonment or
punishment. See 5 N. S. 407.
DIVORCE. The dissolution of a marriage contracted between a man and a
woman, by the judgment of a court of competent jurisdiction, or by an act of the
legislature. It is so called from the diversity of the minds of those who are
married; because such as are divorced go each a different way from the other.
Ridley's Civ. & Eccl. Law, pp. 11, 112. Until a decree of divorce be
actually made, neither party can treat the other as sole, even in cases where
the marriage is utterly null and void for some preexisting cause. Griffiths v
Smith, D. C. of Philadelphia, 3 Penn. Law Journal, 151, 153. A decree of divorce
must also be made during the lifetime of both the parties. After the decease of
either the marriage will be deemed as legal in all respects. Reeves" Dom. Rel.
204; 1 Bl. Com. 440. See Act of Pennsylvania, March 13, 1815, §5.
2. Divorces are of two kinds; 1. a vinculo matrimonii, (q. v.) which
dissolves and totally severs the marriage tie; and, 2. a mensa et thoro, (q. v.)
which merely separates the parties.
3. - 1. The divorce a vinculo was never granted by the ecclesiastical law
except for the most grave reasons. These, according to Lord Coke, (Co. Litt.
235, a,) are causa praecontractus, causa metus, causa impotentiae, seu
frigiditatis, causa affinitatis, et causa consanguinitatis. In England such a
divorce bastardizes the issue, and generally speaking, is allowed only on the
ground of some preexisting cause. Reeves' Dom. Rel. 204-5; but sometimes by act
of parliament for a supervenient cause. 1 Bl. Com. 440. When the marriage was
dissolved for canonical causes of impediment, existing previous to its taking
place, it was declared void ab initio.
4. In the United States, divorces a vinculo are granted by the state
legislatures for such causes as may be sufficient to induce the members to vote
in favor of granting them; and they are granted by the courts to which such
jurisdiction is given, for certain causes particularly provided for by law.
5. In some states, the legislature never grants a divorce until after the
courts have decreed one, and it is still requisite that the legislature shall
act, to make the divorce valid. This is the case in Mississippi. In some states,
as Wisconsin, the legislature cannot grant a divorce. Const. art. 4, is. 24.
6. The courts in nearly all the states have power to decree divorces a
vinculo, for, first, causes which existed and which were a bar to a lawful
marriage, as, precontract, or the existence of a marriage between one of the
contracting parties and another person, at the time the marriage sought to be
dissolved took place; consanguinity, or that degree of relationship forbidden by
law; affinity in some states, as Vermont, Rev. Stat. tit. 16, c. 63, s. 1;
impotence, (q. v.) idiocy, lunacy, or other mental imbecility, which renders the
party subject to it incapable of making a contract; when the contract was
entered into in consequence of fraud. Secondly, the marriage may be dissolved by
divorce for causes which have arisen since the formation of the contract, the
principal of which are adultery cruelty; wilful and malicious desertion for a
period of time specified in the acts of the several states; to these are added,
in some states, conviction of felony or other infamous crime; Ark. Rev. Stat. c.
50, s. 1, p. 333; being a fugitive from justice, when charged with an infamous
crime. Laws of Lo. Act of April 2, 1832. In Tennessee the hushand may obtain a
divorce when the wife was pregnant at the time of marriage with a child of
color; and also when the wife refuses for two years to follow her hushand, who
has gone bonafide to Tennessee to reside. Act of 1819, c. 20, and Act of 1835,
c. 26 Carr. Nich. & Comp. 256, 257. In Kentucky and Maine,, where one of the
parties has formed a connexion with certain religionists, whose opinions. and
practices are inconsistent with the marriage duties. And, in some states, as
Rhode Island and Vermont, for neglect and refusal on the part of the hushand (he
being of sufficient ability) to provide necessaries for the subsistence of his
wife. In others, habitual drunkenness is a sufficient cause.
7. In some of the states divorces a mensa et thoro are granted for cruelty,
desertion, and such like causes, while in others the divorce is a vinculo.
8. When the divorce is prayed for on the ground of adultery, in some and
perhaps in most of the states, it is a good defence, 1st. That the other party
has been guilty of the same offence. 2. That the hushand has prostituted his
wife, or connived at her amours. 3. That the offended party has been reconciled
to the other by either express or implied condonation. (q. v.) 4. That there was
no intention to commit adultery, as when the party, supposing his or her first
hushand or wife dead, married again. 5. That the wife was forced or
9. The effects of a divorce a vinculo on the property of the wife, are
various in the several states. When the divorce is for the adultery or other
criminal acts of the hushand, in general the wife's lands are restored to her;
when it is caused by the adultery or other criminal act of the wife, the bushand
has in general some qualified right of curtesy to her lands; when the divorce is
caused by some preexisting cause, as consanguinity, affinity or impotence, in
some states, as Maine and Rhode Island, the lands of the wife are restored to
her. 1 Hill. Ab. 51, 2. See 2 Ashm. 455; 5 Blackf. 309. At common law, a divorce
a vinculo matrimonii bars the wife of dower; Bract. lib. ii. cap. 39, §4; but
not a divorce ti mensa et, thoro, though for the crime of adultery. Yet by Stat.
West. 1, 3 Ed. I. c. 84, elopement with an adulterer has this effect. Dyer, 195;
Co. Litt. 32, a. n. 10; 3 P. Wms. 276, 277. If land be given to a man and his
wife, and the heirs of their two bodies begotten, and they are divorced. a
vinculo, &c., they shall neither of them have this estate, but he barely
tenants for life, notwithstanding the inheritance once vested in them. Co. Litt.
28. If a lease be made to hushand and wife during coverture, and the hushand
sows the, land, and afterwards they are divorced a vinculo, &c., the hushand
shall have the emblements in that case, for the divorce is the act of law.
Mildmay's Case. As to personalty, the rule of the common law is, if one marry a
woman who has goods, he may give them or sell them at his pleasure. If they are
divorced, the woman shall have the goods back again, unless the hushand has
given them away or sold them; for in such case she is without remedy. If the
hushand aliened them by collusion, she may aver and prove the collusion, and
thereupon recover the goods from the alience. If one be bound in an obligation
to a feme sole, and then marry her, and afterwards they are divorced, she may
sue her former hushand on the obligation, notwithstanding her action was in
suspense during the marriage. And for such things as belonged to the wife before
marriage, if they cannot be known, she could sue for, after divorce, only in the
court Christian, for the action of account did not lie, because he was not her
receiver to account. But for such things as remain in specie, and may be known,
the common law gives her an action of detinue. 26 Hen. VIII. 1.
10. When a divorce a vinculo takes place, it is, in general, a bar to dower;
but in Connecticut, Illinois, New York, and, it seems, in Michigan, dower is not
barred by a divorce for the fault of the hushand. In Kentucky, when a divorce
takes place for the fault of the hushand, the wife is entitled as if he were
dead. 1 Hill. Ab. 61, 2.
11. - 2. Divorces a mensa et thoro, are a mere separation of the parties for
a time for causes arising since the marriage; they are pronounced by tribunals
of competent jurisdiction. The effects of the sentence continue for the time it
was pronounced, or until the parties are reconciled. A. divorce a mensa et thoro
deprives the hushand of no marital right in respect to the property of the wife.
Reeve's Dom. Rel. 204-5. Cro. Car. 462; but see 2 S. & R. 493. Children born
after a divorce a mensa et thoro are not presumed to be the hushand's, unless he
afterwards cohabited with his wife. Bac. Ab. Marriage, &c. E.
12. By the civil law, the child of parents divorced, is to be brought up by
the innocent party, at the expence of the guilty party. Ridley's View, part 1,
ch. 3, sect. 9, cites 8th Collation. Vide, generally, 1 Bl. Com. 440, 441 3 Bl.
Com. 94; 4 Vin. Ab. 205; 1 Bro. Civ. Law, 86; Ayl. Parerg. 225; Com. Dig. Baron
and Feme, C;-Coop. Justin. 434, et seq.; 6 Toullier, No. 294, pa. 308; 4 Yeates'
Rep. 249; 5 Serg. & R. 375; 9 S. & R. 191, 3; Gospel of Luke, eh, xvi.
v. 18; of Mark, ch. x. vs. 11, 12; of Matthew, ch. v. v. 32, ch. xix. v. 9; 1
Corinth. ch. vii. v. 15; Poynt. on Marr. and Divorce, Index, h. t.; Merl. Rep.
h. t.; Clef des Lois Rom. h. t. As to the effect of the laws of a foreign state,
where the divorce was decreed, see Story's Confl. of Laws, ch. 7, §200. With
regard to the ceremony of divorce among. theJews, see 1 Mann. & Gran. 228;
C. 39. Eng. C. L. R. 425, 428. And as to divorces among the Romans, see
Troplong, de l'Influence du Christianisme sur le Droit Civil des Romains, ch. 6.
DOCKET, practice. A formal record of judicial proceedings.
2. The docket should contain the names of the parties, and a minute of every
proceeding in the case. It is kept by the clerk or prothonotary of the court. A
sheriff's docket is not a record. 9 Serg. & R. 91. Docket is also said to be
a brief writing, on a small piece of paper or parchment, containing the
substance of a larger writing.
DOCTORS COMMONS. A building in London used for a college of civilians.
Here the judge of the court of arches, the judge of the admiralty, and the judge
of the court of Canterbury, with other eminent civilians, reside. Commons
signifies, in old English, pittance or allowance; because it is meant in common
among societies, as Universities, Inns of Courts, Doctors Commons, &c. The
Latin word is, demensum a demetiendo; dividing every one his part Minsheu. It is
called Doctors Commons, because the persons residing there live in a collegiate
DOCUMENTS, evidence. The deeds, agreements, title papers, letters,
receipts, and other written instruments used to prove a fact. Among the
civilians, by documents is also understood evidence delivered in the forms
established by law, of whatever nature such evidence may be, but applied
principally to the testimony of witnesses. Savig. Dr. Rom. §165.
2. Public documents are all such records, papers and acts, as are filed in
the public offices of the United States or of the several states; as, for
example, public statutes, public proclamations, resolutions of the legislature,
the journals of either branch of the legislature, diplomatic correspondence
communicated by the president to congress, and the like. These are in general
evidence of the facts they contain or recite. 1 Greenl. §491.
DOG. A well known domestic animal. In almost all languages this word
is, a term or name of contumely or reproach. See 3 Bulst. 226; 2 Mod. 260; 1
Leo. 148; and the title action on the case for defamation in the Digests;
2. A dog is said at common law to have no intrinsic value, and he cannot
therefore be the subject of larceny. 4 Bl. Com. 236; 8 Serg. & Rawle, 571.
But the owner has such property in him, that he may maintain trespass for an
injury to his dog; "for a man may have property in some things which are of so
base nature that no felony can be committed of them, as of a bloodhound or
mastiff." 12 H. VIII. 3; 18 H. VIII. 2; 7 Co. 18 a; Com. Dig. Biens, F; 2 Bl.
Com. 397; Bac. Ab. Trover, D; F. N. B. 86; Bro. Trespass, pl. 407 Hob. 283; Cro.
Eliz. 125; Cro. Jac. 463 2 Bl. Rep.
3. Dogs, if dangerous animals, may lawfully be killed, when their ferocity is
known to their owner, or in self-defence 13 John. R. 312; 10 John. R. 365; and
when bitten by a rabid animal, a dog may be lawfully killed by any one. 13 John.
4. When a dog, in consequence of his vicious habits, becomes a common
nuisance, the owner may be indicted. And when he commits an injury, if the owner
had a knowledge of his mischievous propensity, he is liable to an action on the
case. Bull. N. P. 77; 2 Str. 1264; Lord Raym. 110. 1 B. & A. 620; 4 Camp. R.
198; 2 Esp. R. 482; 4 Cowen, 351; 6 S. & R. 36; Addis. R. 215; 1 Scam. 492
23 Wend 354; 17 Wend. 496; 4 Dev. & Batt. 146.
5. A man has a right to keep a dog to guard his premises, but not to put him
at the entrance of his house, because a person coming there on lawful business
may be injured by him, and this, though there may be another entrance to the
house. 4 C. & P. 297; 6 C. & P. 1. But if a dog be chained, and a
visitor so incautiously go near him that he is bitten, he has no right of action
against the owner. 3 Chit. Bl. 154, n. 7. Vide Animal; Knowledge; Scienter.
DOGMA, civil law. This word is used in the first chapter, first
section, of the second Novel, and signifies an ordinance of the senate. See also
Dig. 27, 1, 6.
DOLI CAPAX. Capable of deceit, mischief, having knowledge of right and
wrong. See Discretion; Criminal law, 2.
DOLLAR, money. A silver coin of the United States of the value of one
hundred cents, or tenth part of an eagle.
2. It weighs four hundred and twelve and a half grains. Of one thousand
parts, nine hundred are of pure silver and one hundred of alloy. Act of January
18, 1837, ss. 8 & 9, 4 Sharsw. Cont. of Story's L. U. S. 2523, 4; Wright, R.
3. In all computations at the custom-house, the specie dollar of Sweden and
Norway shall be estimated at one hundred and six cents. The specie dollar of
Denmark, at one hundred and five cents. Act of May 22, 1846.
DOLUS, civil law. A fraudulent address or trick used to deceive some
one; a fraud. Dig. 4, 3, 1; Code, 2, 21.
2. Dolus differs from fault in this, that the latter proceeds from an error
of the understanding; while to constitute the former there must be a will or
intention to do wrong. Wolff, Inst. §17.
DOMAIN. It signifies sometimes, dominion, territory governed -
sometimes, possession, estate - and sometimes, land about the mansion house of a
lord. By domain is also understood the right to dispose at our pleasure of what
belongs to us.
2. A distinction, has been made between property and domain. The former is
said to be that quality which is conceived to be in the thing itself, considered
as belonging to such or such person, exclusively of all others. By the latter is
understood that right which the owner has of disposing of the thing. Hence
domain and property are said to be correlative terms; the one is the active
right to dispose, the other a passive quality which follows the thing, and
places it at the disposition of the owner. 3 Toull. n. 8 3. But this distinction
is too subtle for practical use. Puff. Droit de la Nature et des Gens, loi 4, c.
4, §2. Vide 1 B1. Com. 105, 106; 1 Bouv. Inst. n. 456; Clef des Lois Rom. h. t.;
Domat, h. t.; 1 Hill. Ab. 24; 2 Hill. Ab. 237; and Demesne as Of fee; Property;
DOME-BOOK, DOOM-BOOK or DOM-BEC A book in which Alfred the Great, of
England, after uniting the Saxon heptarchy, collected the various customs
dispersed through the kingdom, and digested them into one uniform code. 4 Bl.
DOMESDAY, or DOMESDAY-BOOK. An ancient record made in the time of
William the Conqueror, and now remaining in the English exchequer, consisting of
two volumes of unequal sizes, containing surveys of the lands in England.
DOMESTICS. Those who reside in the same house with the master they
serve the term does not extend to workmen or laborers employed out of doors. 5
Binn. R. 167; Merl. Rep. h. t. The Act of Congress of April 30, 1790, s. 25,
uses the word domestic in this sense.
2. Formerly, this word was used to designate those who resided in the house
of another, however exalted their station, and who performed services for him.
Voltaire, in writing to the French queen, in 1748, says) " Deign to consider,
madam, that I am one of the domestics of the king, and consequently yours, lily
companions, the gentlemen of the king," &c.
3. Librarians, secretaries, and persons in such honorable employments, would
not probably be considered domestics, although they might reside in the house of
their respective employers.
4. Pothier, to point out the distinction between a domestic and a servant,
gives the following example: A literary man who lives and lodges with you,
solely to be your companion, that you may profit by his conversation and
learning, is your domestic; for all who live in the same house and eat at the
same table with the owner of the house, are his domestics, but they are not
servants. On the contrary, your Valet de, chambre, to whom you pay wages, and
who sleeps out of your house, is not, properly speaking, your domestic, but your
servant. Poth. Proc. Cr. sect. 2, art. 5, §5; Poth. Ob. 710, 828; 9 Toull. n.
314; H. De Pansey, Des Justices de Paix, c. 30, n. 1. Vide Operative;
DOMICIL. The place where a person has fixed his ordinary dwelling,
without a present intention of removal. 10 Mass. 488; 8 Cranch, 278; Ersk. Pr.
of Law of Scotl. B. 1, tit. 2, s. 9; Denisart, tit. Domicile, 1, 7, 18, 19;
Voet, Pandect, lib. 5, tit. 1, 92, 97; 5 Madd. Ch. R. 379; Merl. Rep. tit.
Domicile; 1 Binn. 349, n.; 4 Humph. 346. The law of domicil is of great
importance in those countries where the maxim "actor sequitur forum rei" is
applied to the full extent. Code Civil, art. 102, &c.; 1 Toullier, 318.
2. A man cannot be without a domicil, for he is not supposed to have
abandoned his last domicil until he has acquired a new one. 5 Ves. 587; 3
Robins. 191; 1 Binn. 349, n.; 10 Pick. 77. Though by the Roman law a man might
abandon his domicil, and, until be acquired a. new one, he was without a
domicil. By fixing his residence at two different places a man may have two
domicils at one and the same time; as, for example, if a foreigner, coming to
this country, should establish two houses, one in New York and the, other in New
Orleans, and pass one-half of the year in each; he would, for most purposes,
have two domicils. But it is to be observed that circumstances which might be
held sufficient to establish a commercial domicil in time of war, and a
matrimonial, or forensic or political domicil in time of peace, might not be
such as would establish a principal or testamentary domicil, for there is a wide
difference in applying the law of domicil to contracts and to wills. Phill. on
Dom. xx; 11 Pick. 410 10 Mass. 488; 4 Wash. C. C. R. 514.
3. There are three kinds of domicils, namely: 1. The domicil of origin.
domicilium originis vel naturale. 2. The domicil by operation of law, or
necessary domicil. 3. Domicil of choice.
4. - §1. By domicil of origin is understood the home of a man's parents, not
the place where, the parents being on a visit or journey, a child happens to be
born. 2 B. & P. 231, note; 3 Ves. 198. Domicil of origin is to be
distinguished from the accidental place of birth. 1 Binn. 349.
5. - §2. There are two classes of persons who acquire domicil by operation of
law. 1st. Those who are under the control of another, and to whom the law gives
the domicil of another. Among these are, 1. The wife. 2. The minor. 3. The
lunatic, &c. 2d. Those on whom the state affixes a domicil. Among this class
are found, 1. The officer. 2. The prisoner, &c.
6. - 1st. Among those who, being under the control of another, acquire such
person's domicil, are, 1. The wife. The wife takes the domicil of her hushand,
and the widow retains it, unless she voluntarily change it, or unless, she marry
a second time, when she takes the domicil of the second hushand. A party may
have two domicils, the one actual, the other legal; the hushand's actual and the
wife's legal domicil, are, prima facie, one. Addams' Ecc. R. 5, 19. 2. The
domicil of the minor is that of the father, or in Case of his death, of the
mother. 5 Ves. 787; 2 W. & S. 568; 3 Ohio R. 101; 4 Greenl. R. 47. 3. The
domicil of a lunatic is regulated by the same principles which operated in cases
of minors the domicil of such a person may be changed by the direction, or with
the assent of the guardian, express or implied. 5 Pick. 20.
7. - 2d. The law affixes a domicil. 1. Public officers, such as the president
of the United States, the secretaries and such other officers whose public
duties require a temporary residence at the capital, retain their domicils.
Ambassadors preserve the domicils which they have in their respective countries,
and this privilege extends to the ambassador's family. Officers, soldiers, and
marines, in the service of the United States, do not lose their domicils while
thus employed. 2. A prisoner does not acquire a domicil where the prison is, nor
lose his old. 1 Milw. R. 191, 2.
8. - §3. The domicil of origin, which has already been explained, remains
until another has been acquired. In order to change such domicil; there must be
an actual removal with an intention to reside in the place to which the party
removes. 3 Wash. C. C. R. 546. A mere intention to remove, unless such intention
is carried into effect, is not sufficient. 5 Greenl. R. 143. When he changes it,
he acquires a domicil in the. place of his new residence, and loses his original
domicil. But upon a return with an intention to reside, his original domicil is
restored. 3 Rawle, 312; 1 Gallis. 274, 284; 5 Rob. Adm. R. 99.
9. How far a settlement in a foreign country will impress a hostile character
on a merchant, see Chitty's Law of Nations, 31 to 50; 1 Kent, Com. 74 to 80; 13
L. R. 296; 8 Cranch, 363; 7 Cranch, 506; 2 Cranch, 64 9 Cranch, 191; 1 Wheat.
46; 2 Wheat 76; 3 Wheat. 1 4 2 Gall. R. 268; 2 Pet. Adm. Dec. 438 1 Gall. R.
274. As to its effect in the administration of the assets of a deceased
non-resident, see 3 Rawle's R. 312; 3 Pick. R. 128; 2 Kent, Com. 348; 10 Pick.
R. 77. The law of Louisiana relating to the "domicil and the manner of changing
the same" will be found in the Civil Code of Louisiana, tit. 2, art. 42 to 49.
See, also, 8 M. R. 709; 4 N. S. 51; 6 N. S. 467; 2 L. R. 35; 4 L. R. 69; 5 N. S.
385 5 L. R. 332; 8 L. R. 315; 13 L. R. 297 11 L. R. 178; 12 L. R. 190. See, on
the subject generally, Bouv. Inst. Index, h. t. 2 Bos. & Pul. 230, note 1
Mason's Rep. 411; Toullier, Droit Civil Francais, liv. 1, tit. 3, n., 362 a 378;
Domat, tome 2, liv. 1, s. 3; Pothier, Introduction Generale aux Coutumes, n. 8 a
20; 1 Ashm. R. 126; Merl. Rep. tit. Domicile 3 Meriv. R. 79; 5 Ves. 786; 1
Crompt. & J. 151; 1 Tyrwh. R. 91; 2 Tyrwh. R. 475; 2 Crompt. & J. 436 3
Wheat. 14 3 Rawle, 312; 7 Cranch, 506 9 Cranch, 388; 5 Pick. 20; 1 Gallis, 274,
545; 10 Mass. 488 11 Mass. 424; 13 Mass. 501 2 Greenl. 411; 3 Greenl 229, 354; 4
Greenl. 47; 8 Greenl. 203; 5 Greenl. 143; 4 Mason, 308; 3 Wash. C. C. R. 546; 4
Wash. C. C. R. 514 4 Wend, 602; 8 Wend. 134; 5 Pick. 370 10 Pick. 77; 11 Pick.
410; 1 Binn. 349, n.; Phil. on Dom. passim.