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ute of Massachusetts disabling a party under certain circumstances not necessary to be here referred to, does not apply to such a case.1

IV. INTER-STATE CUSTODY OF CHILDREN.

ALIMONY.

ENFORCEMENT OF

Decree for Custody of Children. A decree of divorce of a State court of general jurisdiction granting to the party who obtains the same the exclusive custody and control of an infant or minor child of the parties, and over which child the court had actual jurisdiction by its person then being within the jurisdiction and power of the court, will, while it remains in full force, be respected and regarded as binding on the parties, and as conclusive in the courts of all other of the States wherein its validity is brought in question, unless impeached in some way recognized by the law, and this, too, although obtained in a proceeding in rem.2

Action at Law will not lie on Decree for Alimony.

Although,

as we have seen, an action at law will lie ordinarily on a decree in chancery, for a sum of money certain, of a court of another State, yet it must be a final decree, such as leaves nothing more to be done or liable to be done to alter the status thereof, and, therefore, an action at law cannot be sustained on a decree for alimony made in a case of divorce, for such a decree is in its nature temporary and may be increased as necessity may require and the ability of the husband permit, or it may be diminished or dissolved. It cannot be regarded as a decree final and absolute for a sum certain, and cannot have the force or effect of a judgment at law, but is enforcible in chancery only.3

If Defendant Removes to Another State a Bill of Equity Lies against him on Decree of Alimony. But when the defendant husband in such a decree removes to another State so as to place

1 Clark v. Clark, 8 Cush. 385.

2 Wakefield v. Ives, 35 Iowa, 238. But see Thorndice Rice, 24 Am. Law Reporter, 19, 20, where a Massachusetts judge decided on a question of habeas corpus, that the decree of a court of another State awarding the custody of the child to its father was

not a final decree which would be binding in Massachusetts. See, also, 2 Bishop on Marriage and Divorce, §

204.

Barber v. Barber, 2 Pinn. 297, 299, 300; Elliott v. Ray, 2 Blackf. 31. See Harrison v. Harrison, 20 Ala. 629; Barber v. Barber, 21 How. 582.

himself beyond the jurisdiction of the court where the decree is made, and thereby render its enforcement impracticable, a bill in equity lies in the State of the husband's residence upon ordinary principles of equity to enforce the same.

When it Lies in United States Court. And in such case, the parties having thus become citizens of different States, such bill for equitable relief, if the sum claimed brings the case within the jurisdiction of the court, will be sustained in the circuit court of the United States upon general principles of affording relief in equity where there is right and yet no remedy at law; but such United States court takes the jurisdiction upon such general principles only and not as a matter of jurisdiction in cases of divorce, which latter the United States courts do not entertain.1 For although courts of the United States have no jurisdiction upon the subject of divorce or for allowance of alimony, either as an original chancery proceeding or as incident thereto, yet when a divorce has been decreed by a State court of competent jurisdiction, with alimony to the wife, then if such alimony be not paid, and the amount thereof and citizenship of the parties determinable by their respective domiciles be such as in these respects to confer jurisdiction in the circuit court of the United States, and the party liable for the same has placed himself beyond the jurisdiction of the court which decreed the alimony and divorce, so as to render it impracticable for that court to cause its process to act upon his person to enforce payment under the decree, and has no property within the jurisdiction whereof it may be made, then as between the parties, the circuit court has jurisdiction in equity to enforce the decree at the suit of the divorced wife in whatever district the defendant may be found, if at the time they be citizens of different States.

And where such divorce was a divorce a vinculo, and the husband thus departing into a different State and residing there, applied for and got a divorce from the same wife a mensa et thoro, such subsequent divorce does not in any manner discharge him from liability to enforcement of the decree of alimony rendered against him in the first suit for divorce, and it is no defense to a suit on such decree in the State of his subsequent residence or elsewhere when sued thereon. Such judgment or

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decree rendered in a State court, with jurisdiction, has the same binding force in courts of any other State of the United States that it has in the State where originally rendered. As to the domicile of the wife after such divorce, the American rule is that when parties are already living under a judicial separation, her domicile no longer follows his. So that a wife so divorced may thereafter establish a domicile of her own. 1

Prosecution for Bigamy. To sustain a prosecution for bigamy in one State for cohabitation therein with the alleged second wife of the party, where both the marriages are shown to have taken. place in another State, it must be alleged in the indictment that the second marriage was unlawful in such other State at the time it was entered into, for if lawful and valid where it occurred it will not sustain a prosecution for bigamy.2

V. INTER-STATE EFFECT OF FORMER ADJUDICATION.

Former adjudication. A former adjudication in another State must, in order to be a bar, be an adjudication of the very point or subject matter involved in the suit wherein it is pleaded, and must be of the principal question and final upon the merits: a merely interlocutory judgment, order or decree, in reference thereto, will not operate as a bar to a subsequent action or suit, having for its object the principal or main purpose of that in which such interlocutory proceeding occurred. The mere denial of such interlocutory order, judgment or decree, in a similar action or suit in another State, as, for instance, the granting or denial of alimony, will not be a bar to the granting thereof in another suit or action in another State, if to such latter suit or action, the principal proceedings in such prior case, and the decision therein be not such as to bar and preclude the plaintiff in the subsequent suit or action, and the right to maintain the same. 4

1 Barber v. Barber, 21 How. 582.
'State v. Palmer, 18 Vt. 570.
* Brinkley v. Brinkley, 50 N. Y. 184.

4

Brinkley v. Brinkley, 50 N. Y. 184, 202.

CHAPTER XIX.

INTER-STATE LEGAL STATUS OF PERSONS.

I. RESIDENCE AND DOMICILE DEFINED AND DISTINGUISHED.
II. DOMICILE OF INFANTS, MINORS, AND ADULTS.

III.

CITIZENSHIP RIGHTS OF.

IV. LEGAL CAPACITY TO ACT.

I. RESIDENCE AND DOMICILE DEFINED AND DISTINGUISHED.

Residence. A mere residence is a place at which a person resides for a fixed or limited time, without intention of permanency of location. The limitation of time may be fixed by a definite period or term, or by expected future occurrences or circumstances, but nevertheless, accompanied by, as well as begun with, a fixed expectation of removal in the future, and not with the intention of remaining indefinitely.1

A person cannot have a residence in two different States or countries at the same time. But a person may have his domicile in one State, and at the same time a residence in another; the one in his permanent dwelling place, and the other his place of temporary abiding. The difference depends upon his intention, and that intention may be shown by his open declarations and acts, or in the absence of such, then by satisfactory circumstances, if such exist. If one so resort to two such places, under circumstances, and for times so indefinite as to render it otherwise not apparent which of the two is his domicile, then he

1 Brent v. Armfield, 4 Cr. C. C. 579; 2 Kent's Com. *430, note f.

? Ibid.

Haggart v. Morgan, 5 N. Y. 422, 423; In re Thompson, 1 Wend. 45; Frost v. Brisbin, 19 Wend. 11; Love v. Cherry, 24 Iowa, 204, 209.

4 Prentiss v. Barton, 1 Brock. C. C. 389; Butler v. Farnsworth, 4 Wash. C.

C. 101; Case v. Clarke, 5 Mas. 70;
Hylton v. Brown, 1 Wash. C. C. 298.

Tobin v. Walkinshaw, 1 McAllister, 186; Burnham v. Rangeley, 1 Wood. & M. 7; Butler v. Farnsworth, 4 Wash. C. C. 101; State v. Groome, 10 Iowa, 308; Love v. Cherry, 24 Iowa, 204.

has his own right of election in law to determine which of the two is his domicile.1

In some of the States the ruling is, that the term residence, and permanent residence, or domicile, virtually are intended as the same thing, in reference to the necessity of a residence in judicial proceedings for a divorce, and in regard to the right to vote, as said terms are used in the laws of the States. That it must be such a residence as does not contemplate a removal, or as in the mind of the person is permanent, and not resorted to temporarily for a particular purpose. That is, that as used in the statute, it does not mean a mere abiding in the State to enable a party to bring himself within the mere letter of the term, or more circumscribed meaning thereof, as contradistinguished from domicile, but that in connection with proceedings for divorce, and right of suffrage, it means an abiding without intention to again depart from the State to reside elsewhere. And in this sense it is no doubt meant in proceedings of this description. 2

Domicile. By the term domicile is meant the place whercat a person makes his residence with intent to indefinitely there reside, without any expectation of removing in the future therefrom. Every domicile is necessarily a residence; but a residence is not necessarily a domicile. If in the mind of the person there abiding it is merely a temporary abiding place, for a given purpose and definite time, with expectation to then remove therefrom, then, although while there the party in the more broad acceptation of the term, may be said to there reside, yet not being by him regarded as his settled or permanent home, it is not in the general sense thereof or legal meaning of the term, his domicile.3 The latter may be somewhere else; this very principle was acted upon by the Supreme Court of Iowa, in Love v. Cherry, wherein a party was held to have had a domicile in Iowa, during several years' residence in Texas.4

In Louisiana, the true principle as to the character of the residence essential to constitute a domicile of an adult, is laid down. by Justice VOORHIES as follows: "The act of residence does not

'Burnham v. Rangeley, 1 Wood. & M. 7.

Hinds . Hinds, 1 Iowa, 36; State o. Minnick, 15 Iowa, 123.

3 Love v. Cherry. 24 Iowa, 204, 209; 2 Kent's Com. *430, note f.

424 Iowa, 204, 209.

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