
    
      H. Bartlett vs. Wm. Brisbane.
    
    A planter who spends, as a guest and at the house of a friend, four months every summer in the City of Charleston, is a resident of the city, within the meaning of the Acts declaring what classes of persons shall be subject to the jurisdiction of the city court.
    
      Tried in the City Court of Charleston, July Term, 1845.
    The report of his Honor the Recorder is as follows :
    “ This was a summary process case. The only question raised was one of jurisdiction. There were various statements and admissions made in regard to the facts, from time to time, in the progress of the case, which will be stated in the order in which they occured. Mr. Northrop, on the part of the defendant, admitted that Mr. Brisbane served on the jury in the city court for the week commencing Nov. 20th, 1844, and that he was personally served. The first witness sworn on the part of the plaintiff was Alexander Sharlock. He stated that he had summoned the defendant as a juror in the city court; that he after-wards met him and told him that he was summoned; defendant thanked him for reminding him of it. Defendant served as a juror upon that summons ; does not know whether it was in November or January last. Defendant used to live in Meeting-street towards the Battery ; he is a planter, and goes into the country in winter; he has lived two or three summers in the city. Defendant’s counsel here admitted that the defendant has resided in the city from four to five months in the summer season for several years past. A statement was here made by the defendant’s counsel, which was assented to by the plaintiff’s attorney, that the defendant, on being summoned as a juror, objected to his liability to serve, and that the city sheriff informed him that in his opinion he was liable, whereupon he served.
    “ Mr. Northrop was then called as a witness on the part of the plaintiff, and sworn. He said that the defendant passes his time in the city of Charleston, at the residence or house of Mrs. Lowndes, in Meeting-street, that is, the summer season. That defendant lives there as a guest from four to six months in the summer season ; defendant’s family live with him. This was admitted by the defendant’s counsel to have been his habit or custom since his marriage, some eight or ten years since, into the family of Mrs, Lowndes, his mother-in-law. Plaintiff’s testimony here closed.
    “ On the part of the defendant, Mr. L B. Gvimball was sworn. He said that the defendant’s plantation is near Wiltown, in Colleton district. Defendant is a neighbor of witness; he is intimate with him.' Defendant passes every winter there with his family ; defendant owns two plantations near each other ; resides on one; both are in Colleton district. Defendant at one time held a commission as captain in the Beat, at St. Paul’s Parish; he has done duty also as a private; does not know if defendant has done jury duty in Colleton dictrict; knows the house of Mrs. Lowndes in Meeting-street, in which defendant stays in the summer; witness’ position as to residence is in some respects like the defendant’s. Defendant has no other business than that of a planter; is very active in his business; the general habit of planters who live in the city in the summer, and in the country in the winter, is to go into the country after a frost, say about the first of November, and generally to come into the city some time in May. On his cross-examination, he said that the defendant does not carry' on any business in the city, in the summer; he is living in the city now; came down at the usual time. Witness resides in the city in the summer; spends as much time in the city as in the country. In answer to the court, Mr. Grimball stated that he thought the habit of defendant as to residence has been as it is now, and as he (the witness) had stated it, from the marriage of defendant into Mrs. Lowndes’ family, with perhaps some exceptions ; one summer defendant hired a house in Church-street.
    “ Mr. Northrop here stated (which statement was agreed to be taken as evidence,) that the defendant had been summoned to attend as a juror in Colleton district; that he (Mr. Northrop) had carried up an excuse on one occasion to the presiding Judge at Colleton, on account of sickness.
    “ Here the testimony closed, and the question of jurisdiction was fully and elaborately argued, the defendant’s counsel insisting that, under these circumstances, the defendant could not be considered a resident of the city of Charleston. That where there was, as it were, a sort of divided residence between two places, as in this case, between the city and country, that place in which the party carried on his business or occupation, should be considered as his true domicil, and cited to this purpose several authorities. (5 Yes. 750, case of Somerville vs. Somerville ; Domat, Lib. 1, Tit. 16, §3, p. 462; Civil Law Code, Lib. 10, Tit. 39, 1.7; Bynkershoek, vol. 6, p. 186 ; Vat-tel, Book 1, ch. 19, §218 ; Story’s Conflict of Laws, §47.) The court, giving to the question the best consideration in its power, decided in favor of the jurisdiction, and decreed for the plaintiff for the amount of the debt, on which a notice of appeal was duly served on me by the defendant’s attorney.
    “ As the question raised in this case is one for the court exclusively, and is thought to be important, as affecting the rights and immunities of a considerable class of citizens, situated with respect to residence like the defendant in this case, it is perhaps desirable that this court, should give, at more length than it would be otherwise necessary to do, the reasons upon which its judgment is founded. It is not, however, necessary for the decision of the question of jurisdiction involved in this case, to go into any very elaborate or thorough examination of the subject of domicil, as defined in the civil law or by elementary writers. They refer, for the most part, to conflicts arising between the laws of different countries, in which the rights of property or succession depend upon the domicil of the party, and in ascertaining which, considerations of much subtlety, and circumstances of the most minute character, are sometimes resorted to. Thus, while successions to real estate are,admitted to be governed by the lex rei sites, successions to personalty are governed by the law of the domicil, or in other words, by the laws of the country where the party from whom the right of succession is claimed, was a resident at the time of his death. In this latter case, the question of domicil often arises upon a conflict between the laws of one State and those of another ; that is, where by the law of one State, the property would be distributable in one way, and by the laws of another State in a different way; the general rule being, that the succession to personalty is to be governed by the law of the domicil of the deceased owner : it is seen how important the controversy on this question may become, in order to ascertain by what rule the succession shall be determined. In such a case there is, of necessity, a real conflict of laws, because the rules which are set up on either side, emanate from two or more separate and independent jurisdictions, and, therefore, distinguishable from a case like the present, where the rule by which the rights or liabilities of the party are adjusted, is prescribed by one and the same sovereign authority, to wit, the Legislature of the country. Certainly it is competent for the Legislature to decide by positive enactment what shall be the duty and obligation of the citizen, under a certain state of facts, and where that speaks plainly, it is not necessary to resort to mere general or analagous reasoning. Now, although some of the authorities, in regard to a particular case, as that of a party having two contemporary domicils, and a residence in each, alternately, of equal portions of time, indicate that the place where the party’s business lay, should be considered his domicil, which was the rule Ld. Alvanley was induced to adopt, (see Kent’s Com. 2 vol. 431,) yet if the Legislature has laid down a different rule, in the very case, there can be but little doubt which is the rule we are bound to follow.
    “ Having premised this much on the subject of domicil, let us see what the sovereign authority, the Legislature of the State, has enacted on the subject before us. The Act of 1801, establishing the city court, in §. 4, after defining the class of cases in which the court shall have jurisdiction, provides that nothing herein contained shall be construed to bar any person from suing any person resident in the said city, in the said court, for any sum not exceeding $100, exclusive of costs. Sec. 5 enacts that no citizen of this State, not having resided within the limits of the city for three months immediately preceding the commencement of the suit, process or action, or who shall not have been in the habit of residing there during four months in the year preceding the commencement of the suit, shall be liable to be sued in the said court. The Act of 1818, enlarging the jurisdiction of the court, both in amount and the class of cases to which it is extended, provides “ that nothing contained in this Act shall be so construed as to extend to any inhabitant of this State who may not be a resident within the city of Charleston, and no person shall be construed to be a resident of the said city, unless he shall have resided in the said city three months prior to the commencement of the suit or prosecution, or shall have resided within the said city four months during the year immediately preceding the commencement of the said suit or prosecution.” By the Act of 1821, the jurisdiction of the city court is enlarged in amount, and by the Act of 1825 extended to a particular class of cases, leaving the jurisdiction of the court, as far as it depends on the residenoe of the party, as it stood under the previous Acts referred to.
    “Under these Aets, in order to make a citizen of the State liable to the jurisdiction of this court, he must in all cases be a resident of the city of Charleston at the time of the action being brought. This is the first and indispensable requisite. But who shall be considered a resident ? The Act declares that “ no inhabitant of the State shall be construed to be a resident of the city, unless he shall have resided in the same three months prior to the commencement of the action, or shall have resided in the same four months during the year immediately preceding the commencement of the suit.” Now, what is meant by the terms “ resident in the said city,” “ or who shall have resided in the same?” Do they not necessarily include all persons having families, who live with them within the city (as in the case before us) habitually in the summer months, indeed for five or six months in the year, even although such persons may reside out of the city the rest of the year ? If the resident of the city for the summer, occupy his own house, or hire one for the season and occupy it, it would seem to admit of little doubt that he would come within the meaning of the term resident used in the Act. Does he become less an actual resident of the city, if, making Charleston his habitual place of abode for years in the summer months, he puts up with his family at an hotel, or that he and they live as guests in the house of a friend or relative? In the opinion of the court, he does not, and that all the obligations and liabilities imposed upon persons within the city on the ground of residence, whether by way of taxation or civil jurisdiction, are equally applicable to such as to any other class of residents. The original Act of 1801 seems to have contemplated the very class of residents to which this defendant belongs, that is those (planters for the most part or exclusively,) who were in the habit of residing on their plantations in the winter, and in the city during the summer, or for four months in the year. The very basis of this provision is founded upon the assumption or declaration, that for the purposes of this Act certain persons may be regarded as having a divided or double residence, and furnishes a conclusive negation of the idea, that a person cannot be considered as having, for the purposes of the law, a contemporaneous residence in two places at the same time, and that with regard to these very persons they are considered and declared by the Act "to be residents of the city of Charleston, and subject to the jurisdiction of the city court. The case of Gildersleeve vs. Alexander, (2 Speers, 298,) fully sustains these views, and recognizes this construction of the Act of the Legislature in regard to the jurisdiction of the city court.
    “ The argument attempted to be drawn from a supposed conflict in the performance of double jury duty in the country and the city, has no direct application to the portion of liability to process in the city court, and taken in its whole extent, only shews that a party situated as to residence like the present defendant, occupies the same position with that of every other resident of the city, who may be called on to do jury duty both in the city court and the court of sessions and common pleas for the district. If one were summoned to do jury duty at the same time in the city and State court, it would afford an occasion for the exercise of that comity between courts, and that discretion which belongs to all such tribunals, which would, in relieving him from duties in one or the other court, save the party from any injury or embarrassment. Other supposed difficulties as to conflicts in the discharge of militia or other duties, may be as easily reconciled.”
    The defendant appealed, and now moved for anew trial, on the ground that the defendant is not a resident of the city of Charleston, and not subject to the jurisdiction of the city court.
    
      Northrop, for the motion.
    
      Burns & Kunhardt, contra.
   Curia, per Richardson, J.

This case turns entirely upon the Acts of 1801 and 1818, quoted by the city Judge. The obvious meaning of these Acts is to render a citizen, although domiciled out of the city of Charleston, yet liable to be sued in the city court, provided he has resided within the city during four months of the preceding year, or has resided therein for three months immediately before the commencement of the action.

For the purpose of being sued, the Acts, in so many words, make him a resident of the city, without regard to where his domicil may be. It is as incompatible with the peculiar and settled consequences of domicil, or carrying on business in another place, as where A or B lives in one district, but is sued in another. But it would be superfluous to argue after the exposition of the presiding Judge. This court is well satisfied, both with his reasoning upon the Acts and his decision. The motion is therefore dismissed.

Butler, Wardlaw and Frost, JJ. concurred.  