
    MITCHELL’S CASE.
    (Not reported in Court of Claims R.; — Wallace R., —.)
    Warren Mitchell, appellant, v. The United States, appellees.
    
      On the claimant’s Appeal.
    
    
      A citizen of the United States, residing and doing business in Louisville, procures from the commanding general in Kentucky, shortly after the 17th July, 1861, a pass permitting him to go through the lines into the insurrectionary district. Lie goes, and remains there until the latter part of 1864, when he returns to Louisville. While within the insurrectionary district he transacts business, collects debts, and buys cotton. The cotton is captured, and he brings his suit to recover the proceeds in the Treasury. The court below is equally divided upon the question whether the claimant acquired a valid title to the cotton he purchased. Judgment for the defendants. The claimant appeals.
    
    I. Important belligerent rights were conceded -by the United States to the insurgents in the late, rebellion, as if the war had been with a foreign nation; and the laws of war were applied in like manner to intercourse on land between the inhabitants of the loyal and disloyal States, so that it is now well settled that all contracts of the inhabitants of the former with the inhabitants of the latter were illegal and void, and conferred no rights which can bo recognized by the judiciary.
    II. Where one domiciled within loyal territory at the beginning of the rebellion passed through the lines and remained several years within the insurrectionary district, but without change of domicile, his purchases of personal property there involved the same legal consequences as if they had been made by an agent whom he had sent across the lines to make them. No title passed, though he obtained possession of the property purchased, and he cannot maintain a suit for the proceeds of the property under the Abandoned or captured property Act, (12 Stat. L., 820.)
    III. A domicile once acquired is presumed to continue until it is shown to have been changed; and where a change of domicile is alleged, the ■burden of proving it rests upon tbe person making the allegation; and to constitute a new domicile two things are indispensable facto et animo: 1st, residence in the new locality; 2d, the intention to remain there. Therefore, where one domiciled in Louisville passed through the military lines by permission, in July, 1861, and remained within the insur-rectionary district, transacting business, collecting debts, and purchasing cotton, until December, 1884, when he returned to Louisville, but has not established the animus manendi by the usual indicia, viz, declarations, the exercise of political rights, the payment of personal taxes, a house of residence, or a place of-business, it is conclusive against him that his domicile remained unchanged.
    
      The Reporters’ statement of tbe case:
    Tbe following facts were found by tbe court below:
    First. At tbe breaking out of tbe rebellion, tbe claimant, a citizen of tbe United States, resided at Louisville, in tbe State of Kentucky, where be was engaged in business. During tbe month of July, 1861, and subsequent to tbe 17th of tbe month, be procured from the commanding general in Kentucky a military pass permitting him to go through the military lines into-tbe insurrectionary district. Under this pass be went into tbe territory of tbe Confederate States, and remained there until tbe latter part of tbe year 1S64, when be returned to Louisville. While within tbe insurrectionary district be transacted business, collected debts, and purchased from various parties seven hundred and thirty-four bales of cotton. Of this cotton be acquired possession and stored it in tbe city of Savannah.
    Second. On tbe capture of Savannah tbe cotton before described was seized by tbe military authorities, and subsequently sold by tbe agents of tbe Government. Tbe proceeds thereof are in tbe Treasury, amounting in the aggregate to tbe sum of $128,692.22.
    
      Mr. John M. Marian for tbe claimant, appellant:
    Tbe object of Mitchell in procuring a u military pass permit-, ting him to go through tbe military lines into tbe insurrection-ary district” does not appear from tbe findings of fact. There was certainly no purpose on the part of either Mitchell or tbe department commander to violate any statute of tbe United States, for the President bad not, at tbe time tbe pass was given, published bis proclamation in pursuance of tbe Act 
      
      July 13, 1861, which statute, by its terms, became effective only upon the making of such proclamation.
    It is not stated that Mitchell procured the military pass for the purpose of bringing money or property from the' enemy’s territory in violation of the laws of war or any statute of the United States. Nor is there anything in the finding of facts which indicates that the commanding general in Kentucky intended his military pass as a license to trade with the enemy across the lines of military occupation.
    It is stated that “ while within the insurrectionary district he transacted business, collected debts, and purchased from various parties seven hundred and thirty-four bales of cotton;” but it is not found by the court below that the military pass was granted him for the purpose of enabling him to transact any particular business in the South, or to collect debts there, or to purchase the cotton referred to in the findings. Nor is it found that he took any money with him across the lines in July, 1861, or that the cotton which he had stored in Savannah was purchased'with any money he took from Kentucky into the insurrectionary district, or that he had any purpose to bring it across the lines or send it out of the insurrectionary district. So far, then, as this cotton is concerned, the Court of Claims finds only that it was purchased by Mitchell in November and December, 1864, nearly three years and a half after he “went into the territory of the Confederate States” with the permission of the military authorities. There is therefore no necessary or direct connection between the fact of his going into the confederate lines in July, 1861, whether lawfully or wrongfully, and the fact of his purchasing seven hundred and thirty-four bales of cotton in Georgia in November and December, 1864. .
    Had Mitchell, upon his entering the confederate lines in July, 1861, joined the rebel army and become the owner of this identical cotton while he was endeavoring to overturn the Government of the Union, it could scarcely be doubted that, under the present course of decisions, his right to recover the proceeds of the cotton could not be questioned. Since the decisions in Armstrong v. United States, (13 Wall., 154,) Pargoud v. United States, (13 Wall., 156,) and United States v. Klein, (13 Wall., 128,) neither proof of loyalty nor of special executive pardon is necessary on behalf of claimants of the proceeds of captured and abandoned property. The Amnesty proclamation December 25, 1868, has wholly removed the obstacle of disloyalty placed in the way of claimants of captured and abandoned property by the Act March 12, 1863, (12 Stat. L., 820.)
    Suppose, however, that Mitchell went into the territory of the rebellion, voluntarily submitting to its authorities and acquiring a residence there, yet with no intention to raise his hands against the Government of the Union, but for the purpose only of guarding and protecting the property which he owned in that section; and suppose further that during the whole time he was within the confederate lines he neither traded across the line.s nor gave any aid or comfort to the confederate army, beyond the mere fact that he voluntarily acquired and maintained a domicile within its lines — and those suppositions are not inconsistent with the findings of fact by the Court of Claims — can it be possible that he will occupy in the courts of the United States a less favorable attitude than he would have done had he actually taken up arms and made war upon the Government of the Union? And yet that’precise result must be reached in this case if Mitchell is denied the right to the proceeds of the cotton in question.
    In discussing the question of domicile as affecting the rights of persons during a state of war, Sir W. Scott has said:
    “Time is the most important ingredient in constituting domicile. In most cases it is unavoidably conclusive. It is not unfrequently that if a person comes only for a special purpose, that shall not fix a domicile. This is not to be taken in an unqualified latitude, and without some respect to the time which such a purpose may or shall occupy; for if the purpose is of such a nature as may probably or does actually detain the person for a great length of time, a general residence might grow upon the special purpose. A special purpose may lead a man to a country where it shall detain him the whole of his life. Against such a long residence the plea of an original special purpose could not be averred. It must be averred in such a case that other purposes forced themselves upon him and mixed themselves with the original design, and • impressed upon him the character of the country where he resided. Supposing a man comes into a belligerent country at or before the beginning of the war, it is certainly reasonable not to bind him too soon to an acquired character, and to allow him a fair time to disentangle himself; but if he continues to reside during a good part of the war, contributing by the payment of taxes and other means to the strength of the country, he could not plead his special purpose with any effect against the rights of hostility. If he could, there would be no sufficient guard against the frauds and abuses of masked, pretended, original, and sole purposes of a long-continued residence. There is a time which will estop such a plea;. no rule can ñx the time a priori; but such a rule there must be. In proof of the efficacy of mere time, it is not impertinent to remark that the same quantity of business which would not ñx a domicile in a certain quantity of time, would nevertheless have that effect if distributed over a larger space of time. This matter is to be taken in the compound ratio of the time and the occupation, with a great preponderance on the article of time. Be the occupation what it may, it cannot happen, with but few exceptions, that mere length of time shall not constitute a domicile.” (Sir W. Scott in the case of The Harmony, 2 Bob. Adm. Bep., 324; Lawrence’s Wheaton’s Int. Law, ed. of 1883, 560.)
    Says President Woolsey:
    “ The nationality of individuals in war depends not on their origin or their naturalization, but upon their domicile. He is a neutral who is domiciled of free choice in a neutral country, and he an enemy who is domiciled in an enemy’s country. * * * A person having a house of commerce in the enemy’s country, although actually resident in a neutral country, is treated as an-enemy so far forth as that part of his business is concerned, or is domiciled there quoad hoc.” (Woolsey’s Int. Law, § 168.)
    In harmony with these principles this court, in Mrs. Alexander’s Cotton, (2 Wall., 419,) said:
    
      u It is said that, though remaining in rebel territory, Mrs. Alexander has no personal sympathy with the rebel cause, and- that her property therefore cannot be regarded as enemy’s property; but this court cannot inquire into the personal character and dispositions of individual inhabitants of enemy territory. We must be governed by the principle of public law, so often announced from this bench as applicable alike to civil and international wars, that all the people of each State or district in insurrection against the United States must be regarded as enemies until, by the action of the legislature and the Executive, or otherwise, that relation is thoroughly and permanently changed.”
    It is clear, therefore, upon principle and authority, that when Mitchell purchased this cotton in November and December, 1864, he had, by his loug residence in the insurrectionary district, acquired a domicile there, and became in everylegalseri.se an inhabitant of enemy territory, whatever may have been his individual feelings. Even if he entertained the purpose at that time of resuming his residence in Kentucky at the conclusion of the war, or at some future day not definitely fixed, he was, in November and December, 186-1, when he purchased this cotton, an “enemy” of the Government of the United States; not perhaps in the strict sense of the word, but to be deemed such with reference to his property concerned in the trade of the enemy’s territory. He was bound by his residence to the society of which he was then a member, obliged to defend that society for the protection it afforded him. He could not maintain his domicile in Georgia, and engage in business there, and still claim the privileges of a citizen and resident of an adhering State.
    “ The national character of a trader is to be decided, for the purposes of the trade, by the national character of the place in which it is to be carried on. If a war breaks out, a foreign merchant carrying on trade in a belligerent country has a reasonable time allowed him for transferring himself and his property to another country. If he does not avail himself of the opportunity, he is to be treated, for the purposes of the trade, as a subject of the power under whose dominion he carries it on, and as an enemy of those with whom that power is at war.” (Lawrence’s Wheaton’s Int. Law, 574, note 180.)
    Had the cotton purchased by Mitchell in November and December, 1864, been shipped for Europe, and while on the seas been captured by Federal cruisers, he would not have been heard to say that he was doriiiciled elsewhere than in the enemy’s territory. The cotton would have been liable to capture by the cruisers .of his deserted country; and not only free from capture by the cruisers of the Southern Confederacy, his adopted country, but under their protection. {The Venus, 7 Crunch, 277; The Mary and Susan, 1 Wheat., 54.)
    Mitchell, therefore, being an il enemy,” and having a domicile in the enemy’s territory when he purchased the cotton in November and December, 1864, had the same right (so far as the courts of the United States are concerned) to buy and sell within the Confederate lines that any other reside nt of the in-surrectionary districts then had. If his locality or domicile subjected him to the disabilities which attached to the position of an enemy and an inhabitant of enemy’s territory, he should not be deprived of the privileges and benefits which such an enemy was entitled to enjoy within the limits of his own country.
    It was urged in the court below, and will doubtless be claimed here, that the purchase of this cotton by Mitchell in 1864 was. in violation of the lion-intercourse Act July 13, 1861, and was such commercial intercourse as that act was intended to prohibit. In support of this view numerous authorities were cited in the Court of Claims by the Assistant Attorney-General. We will have occasion to comment upon these authorities in the course of this brief. We submit that trading by and between persons wholly within the confederate lines, which did not in its prosecution require or involve intercourse across the lines, or communication with or assent by persons then in loyal territory, was not only not prohibited by statute or public law,, but the right to do so has been too often upheld by the courts to admit of question.
    Had Mitchell gone to the South not for the purpose of remaining there for an indefinite time or during the war, but for the purpose of purchasing cotton and immediately bringing it back across the lines into loyal territory, in violation of the Non-inter - course Act, in such a case, although the transaction was wholly within enemy’s territory, we might admit, without impairing our argument, that he would not have acquired any title to-such cotton as against the United States. In the case supposed the acquisition of the cotton would have been directly connected with or resulted directly and immediately from the illegal entrance into the enemy’s territory for a purpose expressly inhibited by the statute, if not by the general laws of war.
    But the case here presented to the court is wholly different from the -one supposed. Having been domiciled in the enemy’s territory for more than three years prior to his purchase of the cotton, he had the right to trade within the confederate lines with persons on that side, and the property thus acquired became absolutely his, subject of course to the right and power of tbe United States to confiscate it as enemy’s property. But the Government bas not seen proper to exercise such, power with reference to cotton owned by individuals, whether loyal or-disloyal. On the contrary, the Supreme Court has expressly held that there is no confiscation of such cotton when seized by the Government; that possession is in the Government, but. that the right of property remains in the original owner; and that restoration is pledged upon actual proof of loyalty or xe-ecutive pardon; thus making the Government trustee for all. the owners. (United States v. Klein, 13 Wall., 128.)
    In view of the authorities to which we have referred, we'think, we may safely say that neither the statute of July 13,1861, nor any rule of public law forbade Mitchell, being domiciled, in Georgia, from trading with persons also residing within the confederate lines; such trading not contemplating or involving, commercial intercourse in any way, nor any transmission of money or goods or correspondence across the line dividing the-belligerent sections. The Non-intercourse Act of 1861 was never intended to invalidate such individual transactions as that-which Mitchell had when, being domiciled in the enemy’s territory, he purchased this cotton in November and December, 1864, from persons also domiciled in that territory. There are-several decisions in which the general statement is made, as in. MeKeeY. United States, (8 Wall., 166,) “ that unlicensed business, intercourse with an enemy during a time of war is not permitted.” By “enemy” is here meant one who is domiciled in the insurrectionary district, not one who has gone within that • district for a short period with no intention to become connected with the trade of that country, but with the intention to return therefrom in some short time. To have business intercourse with such an enemy across the lines was the intercourse which was intended to be forbidden by the act of Congress.
    The general commanding the department of Kentucky had the right, in July, 1861, prior to the President’s proclamation in pursuance of the non-intercourse statute, to give Mitchell a military pass to enter the confederate lines. If the department commander had no such authority, and if Mitchell’s going into, the confederate lines in July, 1861, was illegal, there is no direct or necessary connection between that illegal act and his purchase of the cotton in question in November and December, 1864, especially as it is not found either that he purchased that cotton with any money taken by him across the lines, or that he had any purpose to transport it across the lines or out of the country in violation of the Won-intercourse Aot or the laws of war. The illegality of Mitchell’s entrance into the confederate lines in 18C1 cannot vitiate his purchase of cotton in 1864.
    By his voluntary residence within the insurrectionary district for more than three years prior to his purchase of the cotton, engaging in business there during that period, he had, at the time of his purchase, acquired such a domicile in the insurrectionary district as made him an “enemy” and an “inhabitant of enemy territory,” with all the disabilities attaching to such persons, and with the same privileges that any other enemy had to trade within the lines of the insurrectionary district with the inhabitants thereof.
    As the, transaction by which Mitchell became the owner of the cotton took place after he had been domiciled in and been engaged in the business of the enemy’s territory for more than three years, and when he was himself an “ enemy,” and as that transaction was wholly within enemy’s territory and with enemies, involving neither communication nor transportation across the lines, nor requiring the assent or approval of any person domiciled at the time within the Federal lines, as a condition-precedent to his ownership of the cotton, a complete title was vested in him by the purchase made in November and December, 1861. He made no agreement as part of or contemporaneously with his purchase of the cotton, that it or its proceeds should be sent or taken across the lines into loyal territory, and consequently his title was acquired without any violation of the laws of war or the provisions of the Won-intercourse Act oj July 1861.
    
      Mr. Attorney-General Williams and Mr. Assistant Attorney - General Gofortlifor the United States, appellees:.
    The appellant was not domiciled in Georgia when he purchased the cotton. There is nothing in the case to show or indicate that Mitchell intended a change of domicile. The reverse appears. If he had intended to expatriate himself and cast his lot with the insurgents, he would not have left them and returned to Louisville before the fate of the new government was decided. His acts in tbe premises were so inconsistent with such an intention, that to argue the intention from the acts cannot be expected from the eminent and learned counsel who represents him here. Besides, he avers in his petition in the case (to which he makes oath) that he has “ at all times borne true allegiance to the G-overnment of the United States.’7 Certainly such an averment is inconsistent with either che fact or the intention of expatriation. At the time Mitchell left his home in Louisville, which was “during the month of July, 1861, and subsequent to the 17th of the month,77 flagrant war existed between that part of the United States where he lived and the part to which he went, viz, the State of Georgia. {Prize, Gases, 2 Black, 635.) Hence he had no right to change his residence. He had no right to leave his country, much less to go into the enemy’s country. (Yattel, § 220.) “As to those who have the Cowardice to abandon their country in a time of danger, and seek to secure themselves instead of defending it, they manifestly violate.the social compact by which all the contracting parties engaged to defend themselves in a united body and in concert; they are infamous deserters, whom the state has a right to punish severely.77 This strong language of Yattel refers to citizens who, when their country is engaged in war, emigrate to a neutral country. It does not seem to have been in the contemplation of law writers that a citizen would in time of war go over to the enemy. It is not necessary in this case to discuss the general question of the right of a citizen to quit his country or the society of which he is a member. The maxim of the common law was “ nemo potest exuere patriam ; 77 and although this doctrine has been much relaxed, it has always been and still is held that no citizen has a right to quit his country in the time of danger or distress, and when he could be of service to his sovereign.
    If Mitchell, being a citizen of the United States and a resident of Louisville, had been in the State of Georgia when the war broke out, it would have been his duty to return home “ without delay.” (The Williami Bagaley, 5 Wall., 377.)
    Being a citizen of the United States, resident in Louisville, Mitchell could not deal with residents of Georgia. From the finding of facts by the court below, it is fair to presume that the appellant not only continued to be a resident of Louisville, but continued in business there; and that he carried with him into tbe insurgent lines the means with which to purchase the cotton for which he makes claim. We cannot presume that he was ever before in the State of G-eorgia; much less that, during the time he was there, he acquired, from nothing, means sufficient to purchase seven hundred and thirty-four bales of cotton. That he “collected debts” within the insurrectionary districts, as the Court of Claims finds, does not imply that the debts were due him before he went there; for, preliminary to this finding, the court finds that he “ transacted business ” there. The hypotheses of the learned counsel for the appellant, that he went South for the purpose of “ saving his property” or to “ save his estate,” are outside the record.
    But whether Mitchell did or did not take anything with him is not material. ' His residence, his home, his domicile, was Louisville, in the State of Kentucky. The purchase of cotton was in the State of Georgia, from persons resident there. This brings the case within the rulings of this court in the cases of Grossmeyer, (9 Wall., 72,) of Montgomery, (15 Wall., 400,) of Lapene & Ferre, (17 Wall., 602,) and of Outner, (17 Wall., 516.) In the case of Lapene & Ffrre this court briefly and clearly states the law as follows:
    “Allf commercial contracts with the subjects or in the territory of the enemy, whether made directly by one in person, or indirectly through an agent who is neutral, are illegal and void. This principle is now too well ’settled to justify discussion.”
    The case of Kershaw v. Kelsey (100 Mass., 561) is cited and relied upon by the counsel for the appellant. There is nothing contended for herein that is not sustained by the opinion of the court in that case. The judgment rendered in the case may be at variance wi th the adjudications of this court, but the case itself is not similar to the case at bar. In that dase it did not appear whether Kelsey went to Mississippi before or after the beginning of the war; and the subject of the contract, so far as it was considered in the opinion of the court, was real property. And the learned judge who delivered the opinion of the court draws the distinction between contracts in respect to real property and personal property, and holds (as all courts have held) that “ every kind of trading or commercial intercourse, whether by transmission of money or of goods, or orders for the delivery of either, between two countries, (at war,) directly or indirectly, or through the intervention of third persons or partnerships, or by contracts in any form looking to or involving such transmission,” are prohibited. Some stress is laid upon the fact found by the court. below that Mitchell “procured from the commanding general in Kentucky a military pass permitting him to go through the military lines into the insurrectionary district.” The pass itself is not produced, and we do not know its purport; but whatever it was, it was merely a “military pass.” The effect of such a paper could only be to exempt the bearer of it from military arrest by soldiers under the Command and subject to the order of the “ commanding general ” who gave the pass. It derived all its force from the hand that wrote it. It would- give Mitchell safe conduct through the “military lines” of the Government, but would not help him in getting within the insurgent lines. The power of General Anderson extended to his pickets, but-no further.
   Mr. Justice S "WAYNE

delivered the opinion of the court.

This is an appeal from the Court of Claims. That court found the following facts :

At the beginning of the late rebellion, Mitchell, the late claimant and appellant, lived in Louisville, Ky. He was engaged in business there. In July, 1861, and after the 17th of that month, he procured from the proper military authority of the United States in Kentucky a .pass, permitting him to go through the Army lines into the insurrectionary territory. He thereupon went into the insurgent States, and remained there until the later part of the year 1864. He then returned to Louisville. While in the Confederate States he transacted business, collected debts, and purchased from different parties seven hundred and twenty-four bales of cotton. He took possession of the cotton and stored it in Savannah. Upon the capture of that place by General Sherman the cotton was seized by the military authorities. It was subsequently sold by the agents of the Government. The proceeds, amounting to the sum of $128,692.22, are in the Treasury. Mitchell bought the cotton in November and December, 1864. He remained within the insurrectionary lines from July, 1861, until after the capture of Savannah by the arms of the United States.

The Court of Claims was equally divided in opinion and dismissed the petition. The claimant has removed the case to this court by appeal.

When Mitchell passed within the rebel lines the war between the loyal and disloyal States was flagrant. It speedily assumed the lagest proportions. Important belligerent rights were conceded by the United States to the insurgents. Their soldiers, when captured, were treated as prisoners of war, and were exchanged and not held for treason. Their vessels, when captured, were dealt with by our prize courts. Their ports were blockaded, and the blockades proclaimed to neutral nations. Property taken at sea, belonging to persons domiciled in the insurgent States, was uniformly held to be confiscable as enemy property. All these things were done as if the war had been a public one with a foreign nation. (The Prize Oases, 2 Black, 687; Mrs. Alexander’s Cotton, 2 Wall., 417; Mauran v. The Insurance Company, 6 id., 1.) The laws of war were applied in like manner to intercourse on land between the inhabitants of the loyal and the disloyal States.

It was adjudged that all contracts of the inhabitants of the former with the inhabitants of the latter were illegal and void. It was held that they conferred no rights which could be recognized. Such is the law of nations flagrante hello as administered by courts of justice. (Vattel, § 220; Griswold v. Waddington, 16 Johns., 438; Cooledge v. Guthrie, 8 Am. Law Reg., N. S., 20; Coppel v. Hall, 7 Wall., 542; Grossmeyer’s Case, 9 Wall., 72; Montgomery’s Case, 15 Wall., 400; Lapine & Ferre’s Case, 17 Wall., 602; Cutner’s Case, 17 Wall., 516.)

While such was the law as to dealings between the inhabitants of the respective territories, contracts between the inhabitants of the rebel States, not in aid of the rebellion, were as valid as those between themselves and the inhabitants of the loyal States.'

Hence this case turns upon the point whether the appellant was domiciled in the Confederate States when he bought the cotton in question.

When he took his departure for the South, he lived and was in business at Louisville. He returned thither when Savannah was captured and his cotton was seized.

It is to the intervening tract of time we must look for the means of solving the question before us.

There is nothing in the record which tends to show that when he left Louisville he did not intend to return, or that while in the South he had any purpose to remain, or that when he returned to Louisville he had any intent other than to live there, as he had done before his departure.

Domicile has been thus defined:

“A residence at a particular place, accompanied with positive or presumptive proof of an intention to remain there for an unlimited time.” (Guer v. Daniels, 1 Binney, 349, note.)

This definition is approved by Phililmore in his work on the subject, (p. 13.)

By the term domicile, in its ordinary acceptation, is meant, the place where a person lives and has his home. (Story’s Confl. of Laws, § 41.)

The place where a person lives is taken to be his domicile until facts adduced establish the contrary. (Bruce v. Bruce, 2 Bos. & Pull., 228, note; Bampde v. Johnstone, 3 Ves., 201; Stanley v. Bernes, 3 Hagg. Ecl. Rep., 374,437; Best on Presumptions, 235.)

The proof of the domicile of the claimant at Louisville is sufficient. There is no controversy between the parties on that proposition. Wé need not, therefore, further consider the subject.

A domicile once acquired is presumed to continue until it is shown to have been changed. (Somerville v. Somerville, 5 Ves., 787; Harvard College v. Gore, 5 Pick., 370; Whart. Confl. of Laws, § 55.)

Where a change of domicile is alleged, the burden of proving it rests upon the person making the allegation. (Crookenden v. Fuller, 1 Sw. & Tr., 441; Hogsdon v. De Buchesne, 12 Moore P. C., 1858, p. 288.)

To constitute the new domicile, two things are indispensable: First, residence in the new locality; and, second, the intention to remain there. The change cannot be made except facto et animo. Both are alike necessary. Either without the other is insufficient. Mere absence from a fixed home, however long continued, cannot work the change. There must be the animus to change the prior. domicile for another. Until the new one is acquired, the old one remains. (Whart. Confl. of Laws, supra, and the authorities there cited.)

These principles are axiomatic in the law upon the subject.

When the claimant left Louisville, it would have been illegal to take up Ms abode in the territory wMther be was going. Such a purpose is not. to be presumed. The presumption is the other way. To be established, it must be proved. (12 Moore, P. C., supra.) Among the circumstances usually relied upon to establish the animus manendi are declarations of the party, the exercise of political rights, the payment of personal taxes, a house of residence, and a place of business. (Phillim., 100; Whart., § 62, and post.) All these indicia are wanting in the case of the claimant.

The rules of law applied to the affirmative facts, without the aid of the negative considerations to which we have adverted, are conclusive against him. His purchase of the cotton involved the same legal consequences as if it had been made by an agent whom he sent to make it.

Obviously important further facts bearing on the question might easily have been put in evidence by either party. We regret that it was not done. As the case is presented, our conclusion is necessarily adverse to the appellant.

The judgment of the Court of Claims is affirmed.  