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; Servant.
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.
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