Case v. Clarke

5 F. Cas. 254, 5 Mason C.C. 70

• Court: U.S. Circuit Court for the District of Rhode Island
• Decided: June 15, 1828
• Status: Published

Opinion

STORT. Circuit Justice.

It appears to me very clear, that there is no sufficient proof, that the plaintiff is a citizen of Massachusetts. To effect that purpose it should be established, that there was a bona fide change of domicil. I do not say, that we can inquire into the motives for the change, or-the reasons, which influence a man to remove from one state to another. Be these motives or reasons what they may, there must still be a bona-fide intention of removal, and a real change of domicil. If a person, wishing to commence suits in the courts of the United States, instead of the state courts, chooses to remove into another state, and executes such intention bona fide, he may thereby change his citizenship. But his removal must be a real one, animo ma-nendi, and not merely ostensible. Now in the present case, no person, can wink so hard as not to see, that the plaintiff never had any intention to change his domicil. He went to Troy upon a mere temporary visit, for a transient purpose, and apparently for the sole purpose of suing out and serving the present process. He returned as soon as the service was completed; and resumed his business as usual. How can such acts, construing them most favourably for him, demonstrate any intentional change of his common domicil ? As well might a man passing into another state in the progress of a journey of business or pleasure claim to be a citizen of such state. There must be some plain overt acts establishing a real removal of domicil. The return here followed too soon upon the removal not to demonstrate, that it was merely an ostensible, and not a real change of domicil. I, for one, feel no desire to encourage attempts of this nature; and am willing, that the state courts should retain all the jurisdiction over causes originating between the citizens of the same state.

Verdict for the defendant.