
    THE STATE, ex rel. GRAHAM, in re TONER.
    [APPLICATION EOR CERTIORARI TO REVISE PROCEEDINGS UNDER HAEEAS CORPUS.]
    1. Liability of domiciled foreigner to military or militia service. — A foreigner, domiciled in this country, is liable to military service in the armies of tlie Confederate States; and if he is discharged from that service, and afterwards acquires a residence in this State, he is liable to militia service at the call of the State, although his discharge from the military service of the Confederate States was granted on the ground that he was not domiciled in this country.
    3. Proof of domicile. — A foreigner, who enlisted in the military service of the Confederate States, as a volunteer, in Mississippi; was after-wards discharged from that service, on the ground that he was not domiciled in this country; subsequently came to this State, engaged • in business here, and was so engaged when taken as a militia-man,— must be regarded as having acquired a domicile here; and his declarations while here, to the effect that he intended to return to his native country, “ if he could get out,” so soon as he had earned enough money, and that he had saved “nearly enough hard cash” for that purpose, are entitled to but little consideraton, and do not bring him within the principle which holds a foreigner, in itinere to his native country, remitted to his domicile of origin. ■
    
      In tbe matter of tbe petition of Joseph Toner for tbe writ of habeas corpus, bj wbieb be sought to procure bis discharge from tbe custody of Col. Wm. B. Graham, commanding tbe second-class militia of tbe county of Montgomery. Tbe application was made to tbe probate judge of Montgomery county, who, on tbe bearing, discharged tbe petitioner from custody. A bill of exceptions was reserved to tbe ruling and decision of tbe probate judge, by tbe counsel who represented tbe State; and application is now made to this court, in tbe name of the State, for tbe writ of certiorari, or other remedial process, to remove into this court, for revision, tbe proceedings bad before tbe probate judge. Tbe material facts of tbe case are stated in tbe opinion of tbe court.
    P. T. Saybe, for tbe State.
    Jno. A. ElMOBE, contra.
    
   A. J. WALKER, C. J.

It is shown by tbe record in this case, that tbe petitioner is a native of Ireland; that be volunteered in tbe military service of tbe Confederate States, in tbe “Yicksburg Sharp-Shooters;” that be was discharged from that service, in Yirginia, on tbe 31st May, 1863, on tbe ground that be was a foreigner not domiciled in tbe Confederate States : that, eight or ten months before tbe commencement of this proceeding, be came to tbe city of Montgomery, and engaged in tbe beeping of a bar, which business be still continues ; and that since be has been in Montgomery be has frequently declared, that Ireland was bis home, that be intended to return thither as soon as be could get money enough, “ if be could get out,-” and that be bad nearly enough “bard cash” for that purpose, and that be came to Montgomery with a view of getting out through New Orleans. 'The petitioner states, in bis petition, that be was in Mississippi when be volunteered ; and tbe discharge which be produces indicates tbe same fact. Tbe case will, therefore, be treated as if that fact were established, without examining tbe question, whether it is legitimately in evidence in tbe case.

Upon these, which are all tbe facts we have before us, was tbe petitioner liable to military service in tbe Confederate States ? Tbis is dependent upon tbe other question, whether be has acquired a domicile in tbis country. To tbe latter question we address ourselves. He is found in tbis country, engaging in its military service as a member of tbe “ Yicksburg Sharp-Shooters.” Not a particle of explanation of bis abode in tbis country is given. It is a well-established principle, that tbe place where a man lives is taken to be bis domicile, until other facts establish tbe contrary. — Story on Conflict of Laws, § 46; 1 Kent’s Com,, m. p. 7-76. Tbe fact of actual abode in tbis country at tbe time of tbe enlistment is unexplained by any contemporaneous events, or acts or declarations. Tbe presumption from tbis unexplained residence of -a domicile is greatly strengthened, by bis engagement in tbe military service of tbe government. A temporary military service possibly may not be conclusive evidence of domicile; but it is certainly a fact powerfully contributing to establish tbe domicile. Aside from tbe authorities to which reference is made, it is a fact, which, from its very nature, goes to show that tbe party regarded tbe country as bis home. — Philli-more on Domicile, m. p. 66-77. -

Tbe petitioner was discharged from tbe army, upon tbe ground of bis being a foreigner, without a domicile in tbis country. Tbis discharge is not binding upon tbe State, in tbis proceeding. It is res inter alios acta, and, besides, has none of tbe qualities of a judicial determination of tbe party’s status. After bis discharge, tbe party comes to tbe city of Montgomery, and engages in business, and continues to pursue it. He declares, during bis stay in Montgomery, that be regarded Ireland as bis home, and intended to return as soon as be obtained tbe necessary funds. These declarations are made after be acquired a domicile, and are perfectly consistent with that fact. They indicate an intention to change bis domicile — not that be bad not obtained a domicile in tbis country. These declarations, if tbe utmost weight be allowed to them, could not be regarded as evidence that be bad not acquired a domicile; but in fact such declarations, when made after an interest is acquired in making them, as a means of avoiding military service,' are entitled to but little, if any consideration. A mere floating intention to return, at some future, indefinite time, cannot prevent the acquisition of a domicile.

The petitioner had not put himself in motion to quit the country. On the contrary, the time for him to commence his return had not, upon his own declarations, arrived. He is not, therefore, in a position to avail himself of the principle, that a foreigner, in itinere to his native country, and not intending to return, regains his domicile of origin.

The residence of the petitioner in Montgomery, accompanied by his engagement in business, fixes his domicile in this State. He does not appear to have had any house, or property, or business, or family, in Mississippi, or in any other one of the Confederate States. His declarations show no intention to go to any other State, but to go, when he left, to Ireland. We do not think that it can be intended that his domicile was in some other one of the Confederate States, and not in Alabama. He had not regained his native domicile ; and Alabama must, under the evidence, be deemed his residence.

Having been discharged from the service of the Confederate States, as having no domicile in the country, the State may, at least until that government asserts its claim to his service, retain him as a militia-man.

The order of the probate judge is reversed and annulled.  