
    MABEL SOLDINI Joined by Her Husband, D. SOLDINI, v. SANCHEZ MORALES & COMPANY, a Corporation.
    San Juan,
    Law,
    No. 1362.
    APPLICATION FOB NEW TRIAL.
    Domicil — Proof.
    1. Domicil must be proved, in a case tbe same as any other fact.
    
      Domicil — New Proof.
    2. Where proof of domicil not used on the trial is shown on the application for a new trial, new trial will be granted, but at the cost of the applicant.
    Evidence — Change of Rule.
    3. Where previous to 1917 there had been no necessity for proof of domicil, a party could not be required to preserve evidence of the fact.
    Evidence — Rule of Repose.
    4. Domicil is a question of fact of residence and intention of remaining. How far the statute of repose of twenty years will apply is not decided.
    Opinion filed May 10, 1920.
    
      Mr. E. B. Wilcox for plaintiff.
    
      Mr. Jaime Sifre, Jr.-, for defendant.
   HAMILTON, Judge,

delivered tbe following "opinion:

Application is made for a new trial on tbe ground of erroneous instructions by tbe court and for tbe discovery of new evidence by tbe plaintiff.

1. Tbe supposed errors in tbe instructions have ..been carefully examined, but tbe court is satisfied that tbe general charge was Correct and tbe general tendency of -tbe instructions was proper. There seems to be a difference in tbe authorities as to '’the amount and burden of -evidence necessary as to domicil. In Barry v. Edmunds, 116 U. S. 550, 29 L. ed. 729, 6 Sup. Ct. Rep. 501; Wetmore v. Rymer, 169 U. S. 122, 42 L. ed. 684, 18 Sup. Ct. Rep. 293, there seems to be required a “legal certainty” to justify failure of jurisdiction under tbe Act of Congress of March 3, 1875, 1 Bates, Fed. Practice, § 253. It is impossible that this means tbe filing of a sworn complaint shall prove tbe facts necessary for jurisdiction in all cases pr throw tbe burden on tbe defendant. Jurisdiction of tbe court must be shown by tbe plaintiff tbe same as any other part of bis case, in order to assure due process of law.

2. Tbe new evidence secured by the plaintiff, however, tends to place tbe case in a somewhat different condition from that at tbe time of trial. Tbe affidavits tend to show that tbe plaintiff •and her husband not only always intended to return to Oregon, but that they consistently expressed their intention, and were in tbe act of preparing to leave viren this cause of action accrued. If this bad been shown at tbe trial tbe result might well have been different. AYliy it was not shown is not clearly explained. It is only said that persons to whom such statements were made by tbe parties have recollected these statements better than tbe parties and since tbe trial have reminded tbe parties of them. 'This is sufficient to make the plaintiff guilty of negligence.

3. Tbe important point is how far Congress has tbe power to •change tbe rule of evidence designed for tbe protection of American residents. Tip to 1917, domicil was not required, and there was nothing to cause parties to preserve evidence on tbe •subject. It is questionable whether tbe law requiring proof of •domicil can be extended back of tbe date of tbe statute in question. Bor this reason it would seem that it would be better in tbe first case which has come up under tbe new act, to allow a .greater latitude in proof for the protection of American residents, than would otherwise be the case. Tbe meaning of tbe law bas not been settled, and parties could not be bold to know wbat its construction properly is.

4. It would be better not to lay down any fixed rule until tbe evidence is presented, subject to proper objections. It need only be said that domicil is a question of fact of residence and intention of remaining, and that tbe mere floating intention to-return is not sufficient. Gilbert v. David, 235 U. S. 569, 59 L. ed. 363, 35 Sup. Ct. Rep. 164; 19 C. J. 407. Ilow far tbe statute of repose of twenty years should, apply, as indicated on tbe formal trial, need not be defined at present. Ever since the-time of tbe Roman Jurisconsults, greater stress bas properly been laid upon acts than mere words in tbe case of domicil.

For these reasons it would seem best for tbe court to permit, a new trial, but at tbe same time protect the defendant against tbe expense to which be bas been put by the failure of the-plaintiff to have tbe necessary evidence ready.

Therefore, a new trial will be granted provided tbe plaintiff within ten days pays tbe taxable costs of tbe trial already bad,, otherwise tbe motion will, on tbe 11th day hereafter, be considered practically denied.

It is so ordered.  