
    BRADSTREET vs. BRADSTREET.
    1. The proof of residence in this case reviewed and held to meet the statutory requirement that the party applying for divorce shall have “ resided within the District for two years next preceding the application.”
    2. If a person has actually removed to another place with an intention of remaining there for an indefinite time, and as a place of fixed present domicile, it is deemed his place of domicile notwithstanding he may entertain a floating intention to return at some future period.
    3. A residence out of the domicile of origin repels the presumption of its continuance, and casts upon him who denies the domicile of choice the burden of disproving it.
    4. Where a person lives is taken prima facie to be his domicile until other facts establish the contrary.
    5. On the evidence in this case, held, that the defendant was domiciled in Washington.
    In Equity.
    No. 10,836.
    Decided June 10, 1889.
    The Chief Justice and Justices Hagneb, James, Montgomery, and Bbadley, sitting.
    Petition for divorce. Hearing in General Term in the first instance.
    The Facts are stated in the opinion.
    Mr. Henry Wise Garnett for complainant:
    Where a person lives is taken, prima fade, to be his domicile until other facts establish the contrary. Ennis vs. Smith, 14 How., 423.
    A person’s residing in a place is prima fade evidence that he is domiciled at that place, and it lies on those who say otherwise to rebut that evidence. Lord Thurlow in Bruce vs. Bruce, 2 Bos. & P., 229 (note); Lord Loughborough in Bempde vs. Johnstone, 3 Ves. Jr., 198.
    
      Prima fade he is domiciled where he is resident. Stanley vs. Bernes, 3 Hagg. Eccl., 373.
    
      Lapse of time.
    
    The respondent has resided sixteen years in-the District of Columbia. Residence, if long continued, is of great weight in determining the question of animus manendi.
    
    “Of the principles that can be laid down generally, I may venture to hold that time is the grand ingredient in constituting domicile. * * * Time is the great ingredient in this matter. Be the occupation what it may, it cannot happen, but with few exceptions, that mere length of time shall not constitute domicile.” Lord Stowell in The Harmony, 2 C. Rob. Ad., 322.
    “If a man goes to another country and continues to reside there for a considerable period, as in this case, for ten years, without saying that a residence of ten years is necessary, or that ten years is the period sufficient, still the fact of his residing there for ten years is a very strong indication of his intention to establish his home and his domicile in that place.” Lord Kindersley in Cockrell vs. Cockrell, 2 Jur. (N. S.), 727.
    “As to domicile, it is undoubtedly true that length of time, connected with other circumstances, may go very far to constitute a domicile. ‘Time,’ says Sir William Scott, ‘is the grand ingredient in constituting domicile.’ I think that hardly enough is attributed to its effects. In most cases it is unavoidably conclusive.” Story, J., in The Anna Green, 1 Gall., 274.
    Residence in one place for a number of years is a violent and continuing proof of the animus manendi, and it is incumbent on the party to repel this. Elbers vs. Company, 16 John., 128; 1 Wall. Jr., 264.
    In Attorney General vs. Kent, 1 Hurl. & Colt, 12, it was held that lapse of time in a place constituted domicile there in spite of declarations of intent to retwrn to original domicile.
    
    An important element in determining the domicile of the head of the family is the residence of wife and family. This circumstance has been frequently referred to as important, if not controlling. 3 Wait’s Act. and Def., Domicile, 635, quoting many cases.
    
      For the principle that marriage in a country to a woman domiciled there is evidence as to domicile of husband, if he continues to reside in that country, see the decision of Lord Kindersley, who held that' an Englishman’s marriage in India and his continued residence there was strong evidence that he was domiciled there. Cockrell vs. Cockrell, 2 Jur(N. S.), 727.
    A mere floating intention to return' to a domicile abandoned in fact cannot preserve such domicile.
    “ If a person has actually removed to another place with an intention of remaining there for an indefinite time and as a place of fixed present domicile, it is to be deemed his place of domicile, notwithstanding he may entertain a floating intention to return at some future period.” Story, Conflict of Laws, Sec. 46.
    “If a person leaves this State and removes to another with an intention of remaining there for an indefinite time and as a place of fixed present domicile, it becomes his place of domicile, notwithstanding he may entertain a floating intention to return at some future period.” Ringgold vs. Bailey, 5 Md., 186.
    A clerk of a congressional committee “ living in Washington as a place of present residence, though he had an intention of retaining his domicile in and returning to Minnesota at some indefinite period, could not be said to retain a dwelling-place in Minnesota, and his domicile would not be there.
    “ A solemn declaration of intention not to renounce domicile held not to prevail:
    “ Probably he wished for two domiciles; but, in spite of a lurking desire to return to E, his acts show an intention to live and die in H, and that is not affected by the declaration.” In re Steer, 3 H., & N., *597.
    Even the oath of a person whose domicile is in question, as to his intention to change his domicile, is not conclusive. Wilson vs Wilson, 2 Prob. & Div., 435.
    
      
      Definition of domicile.
    
    “That place must be adjudged to be the domicile which bears', most of all, the characteristics of ‘ home.’ ” Jacobs on Domicile, Sec. 423.
    Domicile is a place where a man has established a home for himself and family. Thayer vs. Boston, 124 Mass., 132.
    “ There is no doubt that every person has his domicile in that place which he makes his family residence and principal place of business; from which he is not. about to depart unless some business requires.” Story’s Translation of the Roman Code.
    
      “ Domicile is a residence at a particular place, accompanied with positive or presumptive proof of continuing it an unlimited time.” President Rush in the leading American case of Guier vs. O’Daniel, 1 Binney, 349 ; Phillimore in Lord vs. Colvin, 4 Drew, 366.
    “A man’s domicile is his home, -where he establishes his household and surrounds himself with the apparatus and comforts of life.” Tanner vs. King, 11 La. R., 175 ; and see Dennis vs. State, 17 Fla., 389-401.
    “Voting and paying taxes do not constitute a domicile, for domicile, being a question of general law, cannot depend on the municipal regulations of any State or nation.” Guier vs. O’Daniel, 1 Binney, 349 (note).
    In a divorce case where the respondent was a Government clerk in Washington it was held, although he claimed to be domiciled in Pennsylvania and voted in that State, that the Supreme Court of the District of Columbia had full jurisdiction.
    “ The circumstance that he was permitted to vote in Pennsylvania is not one to which we attach much importance on a question relating to the domestic relations.” Cartter, J., in Strait vs. Strait, 3 Mac Arthur, 418.
    “ It will not do to say that one shall have of a commwiity all that he can get out of the community; and, on the other hand, shall not retwn to the community some corresponding obligation 
      
      of citizenship.” Merrick, J., in U. S. vs. Nardello, 4 Mackey, 513, 514.
    “Where the cause of divorce has occurred within the District, there is jurisdiction.”- Smith vs. Smith, 4 Mackey, 256.
    Mr. Frank W. Hackett for defendant:
    1. The defendant’s domicile is Boyalton, Vt. The complainant, in June, 1886, abandoned Washington, and went to her native place, Detroit, Mich., thereby acquiring a Michigan domicile. At her marriage complainant acquired the domicile of her husband, namely, Vermont. On leaving Saratoga Springs, in August, 1887, complainant was domiciled in Vermont, and she has never since been in Washington.
    2. To entertain jurisdiction the court must be satisfied that at the date of the filing of the bill (1) Mrs. Bradstreet had a domicile in this District; or(2) in the event that Mr. Bradstreet’s domicile was elsewhere his wife had acquired, for the purpose of obtaining a divorce, a domicile here. Neither of these propositions are proved.
    3. The certificate of marriage, signed by both parties August 6, 1886, gives as Mr. Bradstreet’s residence, “ Boyalton, Vt.” Mrs. Bradstreet therein alleges her residence to be “ Detroit, Mich.”
    The defendant is only temporarily in Washington. A clerk of a legislative committee is less distinctly “ located ” in this District than are clerks of the Executive Departments. The latter class do not lose their domicile by coming here. Atherton vs. Parker, 8 N. H., 180; Hannan vs. Grizzard, 89 N. C., 116.
    In Carpenter vs. Carpenter, 30 Kansas, 717, the point came directly in issue whether the plaintiff was a resident of N. County, within the meaning of the code providing that the plaintiff in an action of divorce must have been an actual resident in good faith of the county at the' time of filing. Plaintiff lived at Leavenworth (not in N. County) for five years as collector of internal revenue, going to N. County to vote, and keeping there a sleeping apartment and his law library. He married in Pennsylvania, brought his wife to Leavenworth, and kept house there. It does not appear that she ever went to N. County. Held, that he wras an actual resident of N. County. See, also, Hayes vs. Hayes, 74 Ill., 312, where it was held that as regards distribution of personal property a domicile in Illinois is not lost by the party residing in Iowa, owing to domestic troubles, and by his voting there (Iowa’s laws authorizing one to vote on a residence of six months) or by his purchasing a house and lot there on speculation. Tyler vs. Murray, 57 Md., 418; Gittings vs. Ockerme, 35 Md., 169.
    The proof shows incontestably that defendant is a bona fide resident of Royalton, Vermont, his native town, where he has voted and always remained a voter. He has no business interest in this District, no money invested here in real estate or otherwise. He was not in the habit of staying here after his active work at the Capitol ceased. He came here from Vermont solely to act as clerk of a committee,'a temporary office that he might be obliged to vacate at a moment’s notice. His home is in Vermont, and while traveling he registered his name and that of his wife as of “Royalton, Vermont.” He has effects at his father’s house in Royalton, and a room kept there as specially his own. He accompanies the Vermont Senator to that State on the adjournment of the Senate. Pie is in no sense domiciled in this District.
    “Residence” in divorce means “permanent abode,” or domicile. Jacobs on Domicile, Sec. 76; Ross vs. Ross, 103 Mass., 575; Bishop on Mar. & Div., Sec. 124.
    The chairman of the committee testifies that he thinks Mr. Bradstreet’s stay “is precisely like my stay here in my official capacity as a Senator, and that we are both citizens and residents of Vermont.”
    4. The plaintiff left Washington before her marriage to defendant, and returned to her domicile of origin, Michigan. Re Walker, 1 Lowell, 237. Thence she wrote to defendant : “ It seems now that I want to stay right here as long as I live. I never shall return.” She was married here in August, 1886, as of Michigan. After deserting the defendant at Saratoga Springs, she has never visited Washington, but has sent here and had her furniture in part sold, the rest sent to her home in Michigan.
    It is not necessary to deny the proposition that for the purposes of divorce a wife may obtain a domicile in this District while her husband has lived and continues to live elsewhere. The facts here show that plaintiff has not obtained such a domicile, nor has she ever taken steps thereto.
    Mr. Bradstreet’s domicile being in Vermont, this court has no jurisdiction of the bill, because the plaintiff had not resided within the District for two years next preceding the date of her application. Section 740 Devised Statutes provides that “ No divorce shall be granted for any cause which shall. have occurred out of the District, unless the party applying for the same shall have resided within the District for two years next preceding the application.”
    The bill alleges cruelties committed in Washington in December, 1886, and proceeds to show that the parties lived here as man and wife, until June, 1887, 'when they left Washington together for a summer trip to New Hampshire, etc.
    The cruelties alleged to have been committed six months before they left the District, her bill on its face shows were condoned. The cause, therefore, for which divorce is now asked is certain misconduct alleged to have taken place outside the District, viz., in New Hampshire.
    That a cause of divorce for cruelty once condoned may be revived by subsequent cruel treatment we admit, but we submit that it is not revived for any other purpose than as evidence that may be urged to satisfy the court in corroboration of a present cause, that the parties ought no longer to live together. The condonation differs from that in cases of adultery, the effect of the injury being entirely dissimilar. The language of the statute is: “ No divorce shall be granted for any cause which shall have occurred out of the District, unless,” &c. If it be necessary to prove acts of cruelty committed out of the District in order to sustain this bill, then the wholesome restriction of the statute applies. The cruelty here charged must endanger life or health. It is not sufficient that there be a reasonable apprehension, to the satisfaction of the court, of bodily harm. This latter condition of affairs warrants a divorce from bed and board only. The real cause asserted in the bill is cruelty inflicted in New Hampshire.
    The statute being designed for bona fide residents, and not for the benefit of outsiders, Mrs. Bradstreet cannot be regarded as having resided here for two years preceding the filing of her bill. Her resigning her office and going to her old home in Michigan, and writing thence that she should never return, brought to an end any domicile she may have previously had in Washington. This result accords with her own act in signing afterward her marriage certificate as a resident of Detroit, Michigan. The attempt of her daughter (whose testimony is involved in contradictions) to overcome the effects of this letter is useless. The letter, written just after she had left Washington, and had gone back to her domicile of origin, is not easily set aside by present protestations that her intentions were entirely different from what she at that time announced them to be.
    A non-resident plaintiff (whether husband or wife) cannot invoke the jurisdiction of this court in divorce proceedings. So far as the opinion in Smith vs. Smith, 4 Mackey, 255, would appear to depart from the well-settled principles in this regard, it ought to be made the subject, upon proper occasion, of careful review.
   Mr. Justice Bradley

delivered the opinion of the Court:

This is a proceeding for divorce. The petition was filed October 25, 1887. The petitioner, Sarah Bradstreet, alleges in her petition that she was married to the defendant, George P. Bradstreet, in the District of Columbia, the 6th day of August, 1886 ; that she is temporarily stopping in the city of Detroit, State of Michigan; that she had resided in the District -of Columbia for more than ten years prior to filing her petition, and that the defendant is also a resident of said District of Columbia. Her prayers for relief are based upon several alleged acts of cruelty on the part of the defendant, which are set forth in the petition, some of which are claimed to have occurred in the District of Columbia, and the last of which are alleged to have occurred outside of this District, some time in the summer of 1887.

The defendant was served with process, and on November 12, 1887, he filed his plea in bar, alleging that petitioner was not a resident of the District of Columbia at the time of filing her petition; that she had not resided therein for two years next preceding her application; that before her marriage with defendant she was a resident of, and domiciled in, the State of Michigan; that she deserted the defendant and went to the State of Michigan, where she resided at the date of filing her petition; and that defendant is not, and never has been, a resident of the District of Columbia,- but has always been, and still is, a resident of Royalton, Vt., which is his domicile.

Issue being joined upon this plea, evidence was taken in behalf of both parties, and the cause having been set down for hearing, it has been certified to this court to be heard in the first instance.

Prom the testimony it appears that at the time of her marriage to the defendant the petitioner was a widow; that she came to the District of Columbia with her first husband, H. H. Cushing, and their children, and commenced housekeeping with him here in the month of May, 1868; that she continued to reside here with him until his death; that in 1872, after his death, she obtained a position in the Post-Office Department, and continued as a clerk in said Department until June 28, 1886, when she resigned her position or was removed by the Postmaster-General, when she went to Michigan with her daughters; that during all this time she kept house and resided (with her children, two daughters and a son,) in this District; that when she went to Michigan in June, 1886, she left her house in this city open and in charge of servants; that she left Michigan and returned to Washington, and was married to the defendant, August 6, 1866; that she returned to Washington for the purpose of looking after her house, and to decide whether to accept another Government position; of which she then had the promise, or to marry the defendant; that after her marriage to defendant, he rented a house, No. 2017 Q, street N. W., in this city, where she lived with him until the summer of 1887, when she went away with him for a summer trip, during which, on account of grief at her daughter’s death, and because of defendant’s alleged bad treatment, in the month of August, she went to visit her brother in Detroit; that she intended to return to this District, but, upon the advice of her brother, she remained in Detroit pending the divorce proceedings, her petition for divorce being sworn to in that city, and forwarded from there to this jurisdiction to be filed.

It is beyond dispute that the petitioner was a bona fide resident of the District of Columbia from 1868 until she resigned her office in June, 1886. It is claimed, however, that Michigan was her domicile of origin, and that when she returned there in June, 1886, she wrote to the defendant a letter, which, in stating that their former relations were now severed and entirely at an end, also uses the expression “ I never shall return,” and that inasmuch as the domicile of origin reverts easily, this declaration coupled with actual presence in that State, effected the change of domicile. But the evidence shows that she had the promise of another office in Washington ; that she had left her house here open and in charge of servants, and that she fully intended to return, and that statement considered in its connection, and with the circumstances surrounding it, appears rather to be a declaration that she would never return to her former relations with the defendant.

It is also claimed that the petitioner was not a resident of this District at the time of her application, inasmuch as she deserted the defendant at Saratoga, in August, 1887, and went to Michigan to permanently remain. This claim is not sustained by the evidence, which shows that she is temporarily visiting her brother in that State, and that she is abiding with him pending this proceeding and intends to return to this Distirct upon its termination.-

Unless, therefore, the law requires something more than actual bona fide residence in this District of the party complaining, in order to maintain a suit for divorce, and unless the defendant, at the time of the marriage, was domiciled in Vermont, and was there domiciled at the time of this application, and such domicile drew to it that of the petitioner, so that she was no longer a. resident of this District in the sense of the law from the time of her marriage to defendant, the requirement that the party applying has “resided within the District for two.years next preceding the application,” is fully satisfied by the proof in this case.

Was the defendant domiciled in Vermont? Vermont was his domicile of origin, but at the time of marriage he had not resided in that State for thirteen years. He had only visited his old home for a short stay in the summer. Had spent a part of his summers in travelling, and the remainder of the year he had resided in this District. This residence here was not for any definite, limited stay, but for ten years defendant had been clerk to the' Judiciary Committee of the Senate, intending and expecting to remain here as long as that employment lasted. During this time he had boarded with the petitioner; h‘ad furnished a room in her house, and had removed furniture from Vermont to Washington, for that purpose.' He had no home in Vermont in the proper sense of the word. His father was domiciled in that State, and the defendant was accorded the privilege of stopping at his father’s house when visiting Royalton in consideration of the payment of board. He had not voted or paid taxes in that State for several years, but whether he had preserved or lost his political rights is not considered material. He was married here. He rented and furnished a house where he resided with petitioner and her daughters, and the evidence discloses efforts on his part to purchase that house, and declarations that if he could purchase he wpuld spend the .summers here.

“If a person has actually removed to another place with an intention of remaining there for an indefinite time, and as a place of fixed present domicile, it is deemed his place of domicile notwithstanding he may entertain a floating intention to return at some future period.” Story Confl. Laws, Sec. 46.

“But what amount of proof is necessary to change a domicile of origin into a prima facie domicile of choice ? It is residence elsewhere or where a person lives out of the domicile of origin. That repels the presumption of its continuance, and casts upon him who denies the domicile of choice the burden of disproving it. Where a person lives is taken prima facie to be his domicile until other facts establish the contrary.” Ennis vs. Smith, 14 How., 422.

■ In Ringgold vs. Bailey, 5 Md., 186, the court says upon this subject: “The party’s purpose to remain need not be fixed and unalterable. If it becomes a place of fixed present domicile it will be sufficient to fix a residence, and although there may be a floating intention to return to his former place of abode at some future period, still these circumstances will not defeat the newly acquired residence or the rights and obligations which attach to it.”

In Mooar vs. Harvey, 128 Mass., 219, it appeared that defendant enlisted in the army, and in February, 1864, he was detailed as bookkeeper in the Surgeon-General’s office in Washington. In 1869 he was appointed a clerk in the Treasury Department at Washington, which office he held at the time of suit; that since February, 1864, he had lived in Washington. Held, that although’the defendant was in military service, he could change his domicile to any place he saw fit. “The jury would be justified in finding that since 1864 he had actually lived in Washington with short occasional absences. This is one essential element of domicile in Washington. The remaining element is the intent with which he lived there * * * he lived in Washington, and all the outward indicia which usually determines the domicile of a person appointed to that place as the place where he resided and had his home. The evidence tended to show that he had not paid taxes nor voted in Lawrence since 1862. This failure to perform the duties and avail himself of the privileges of a citizen is a significant fact pointing to a change of domicile.”

The evidence shows that at the time of filing the petition in this proceeding,'the defendant had lived out of his domicile of origin for thirteen years, and that during that time he had resided in Washington. This was prima facie the domicile of choice, and imposed upon him the burden, which he also assumed by his plea, of proving that he had retained his Vermont domicile of origin. This burden has been assumed to be lifted by the inference sought to be drawn from the alleged temporary character of the defendant’s employment, and his presence in the District of Columbia, under such employment, has been, likened to that of a United States Senator, who may be temporarily located here representing the interests of his State. It is apparent, however, that the employment, although, subject to termination at any time by the will of the Judiciary Committee, was not of a mere temporary nature, but was for an indefinite time; that the duties of such employment required the presence of the defendant in Washington during the greater portion of the year. Unlike a Senator he is pursuing here his own business, seeking his own interests, and representing himself exclusively. His acquisition of a new domicile here is not only not inconsistent with his employment, occupation, and interests, but is thoroughly consistent with them, and the legitimate conclusion from the whole evidence of his conduct and declarations is that this District was and is his domicile of choice.

If, therefore, in Sec. 740, E. S. D. C., the word “ resided ” means “ domiciled,” we find that the petitioner and defendant were here domiciled at the time of their marriage, and that this was their domicile at the time of making this application.

The result of this conclusion is, we overrule the plea to the jurisdiction and remand the case to the Special Term.  