Foss v. Foss

58 N.H. 283

• Court: Supreme Court of New Hampshire
• Decided: March 5, 1878
• Status: Published

Opinion

Allen, J.

To entitle the court to take jurisdiction of a cause of divorce, the libellant must have an actual bona fide residence.- in the state. Fellows v. Fellows, 8 N. H. 160; Greenlaw v. Greenlaw, 12 N. H. 202; Batchelder v. Batchelder, 14 N. H. 380; Payson v. Payson, 34 N. H. 520. And the cause of divorce, if arising out of the state, must have been at a time when the domicil of the libellant was in the state. Clark v. Clark, 8 N. H. 21; Frary v. Frary, 10 N. H. 61; Smith v. Smith, 12 N. H. 80; Kimball v. Kimball, 13 N. H. 225; Hopkins v. Hopkins, 35 N. H. 474; Leith v. Leith, 39 N. H. 20, 32, 33. If the domicil of the libellant, at the time the alleged causes of divorce took place, was in New Hampshire, as he claims, the court has jurisdiction of the cause ; otherwise, not.

The place of one’s domicil is the place of his home. Phil. Law of Dom. 11. In the ordinary acceptation, it is where he lives and has his home. Story Confl. of Laws 41. It is the place in which, both in fact and intent, the home of a person is established, without any existing purpose of mind to return to a former home. It is the place which the fact and the intent, combining with one another, gravitate to and centre in as the home. 2 Bishop Mar. and Div. 118. To acquire a domicil, residence and the intention to make it the home must concur. Once acquired, actual residence is not indispensable for its retention ; it may be retained by an intention not to change it. Hart v. Lindsey, 17 N. H. 235; Leach v. Pillsbury, 15 N. H. 138. An existing domicil is not changed or lost by a departure from it for a temporary purpose, or with an intention of returning. Bump v. Smith, 11 N. H. 48.

The circumstances stated in the case are evidence from which the domicil can be found, upon the well settled principles applicable to the subject, and the fact must be determined at the trial term.

Case discharged.

Bingham, J., did not sit.