Atherton v. Thornton

Parker, J. It has generally been considered that persons appointed to public office under the authority of the United States, and taking up their residence in Washington for the purpose of executing the duties of such office, do not thereby, while engaged in the service of the government, lose their domicil in the place where they before resided, unless they intend on removing there to make Washington their permanent residence. 2 B. & P. 231. Prior to July, 1830, the defendant had his domicil in Merrimack ; and various circumstances in the case show that he did not intend to make Washington his fixed place of abode. He retained his farm in Merrimack — resorted to it for short periods when his public duties permitted him so to do — sent his family there — and repeatedl y declared his intention of returning and residing there. It seems, therefore, that the domicil which the defendant had acquired in Merrimack remained, notwithstanding his personal residence, with his family, in Washington. “ In ‘ many cases actual residence is not indispensable to retain a ; domicil after it is once acquired; but it is retained, animo ‘ solo, by the mere intention not to change it, or adopt ‘ another. If, therefore, a person leave his home for tempo- ‘ xary purposes, but with an intention to return to it, this ‘ change of place is not in law a change of domicil. Thus ‘ if a person go on a voyage to sea, or to a foreign country, ‘for health, or pleasure, or business of a temporary nature, ‘ with an intention to return, such transitory residence does [181] ‘ not constitute a new domicil, or amount to an abandonment ‘ of the old one • for it is not the mere act of inhabitancy in 1 a place, which makes it the domicil, but the fact, coupled' ‘ with the intention of remaining there, animo manendi.” Story's Conflict of Laws 42. But, had the defendant left the state without any intention of returning here to remain, he must be charged in this case. After his appointment, he resorted to this state, occasionally, to reside, and during the time he had his personal residence here he became bail upon the original writ. He must be presumed to have understood the liability he thereby assumed. The statute relating to bail, after enacting that the sureties shall be obliged to satisfy the judgment obtained against the principal, in case of the principal’s avoidance, and return of non est inventus upon the execution, provides “that the ‘ creditor, in any civil action, intending to charge the bail in ‘ such action, shall deliver his execution to an officer, with ‘ the name or names, place or places of residence, of the 1 person or persons who became bail in such action ; and the 1 officer shall, at least fifteen days before the return day of ‘ said execution, deliver to at least one of the bail in such ‘ suit, or leave at his dwelling house or last and usual place ! of abode, a notice in writing, stating that such execution ‘ is in his hands, the amount of the same, and when return‘able,” &c. N. H. Laws, 497. Were it not for this clause the defendant would have been chargeable by the mere avoidance of the principal and a return of non est inventus. But this clause cannot avail him, because by his “ last and -Usual place of abode,” as used in it, must, clearly, be intended his last and usual place of abode in this state. It is apparent that the execution must be delivered to an officer in this state. He is to give the notice, and this notice is an official act. This act he cannot be required to perform out of his jurisdiction. Such an act, so performed, would in ordinary cases be void. — Putting a letter into the post office [182] would not be a compliance with the terms of the statute, and it could never have been intended that the officer should travel to WasMngton, or New-Orleans, or wherever the bail might have gone, to give the notice. The defendant had his actual residence here when he became bail, which was a sufficient domicil for the purposes of the present inquiry ; and his removal to another jurisdiction could not defeat his liability as bail, Or impose different duties upon the creditor, and more especially upon the officer. 9 Wheaton 598, McGruder vs. The Bank of Washington; 2 Peters' Sup. C. Rep. 102, Williams vs. The Bank of the United States. Judgment on the verdict.