Thursday, November 9, 2017

BURGE ON COLONIAL AND FOREIGN LAWS.


This looks to be a great find for those of us looking to find answers, as always i will upload the whole book to my groups files, you can also grab it off google books for free.

And as always, some quotes......



Chapter 2

The law of the place of the domicile prevails to so great an extent in determining, not only the status, capacities, and rights of persons, but the title to move-able, or personal property, that it is necessary to ascertain what constitutes the domicile, how it is acquired, and how it may be changed.


It is acquired at the time of birth, and is called the natural, or paternal, but more frequently, and more appropriately, the domicile of origin. It is that which a child receives from his parents, and which he retains after their death, until he has made choice of another domicile.


The place of birth constitutes that which is termed the domicile ratione originis. This may not be the place in which the birth actually happened, as where the mother was delivered of the child on a journey. (a) The domicile of origin of a child born on the high seas, is the domicile of his parents. (b) The civil law regarded those born in any of the islands, as natives of the state to which the island belonged. A child born in wedlock acquires the domicile of his father, " Patris originem unusquisque sequitur." But an illegitimate child acquires that of his mother, " Ejus, qui justum patrem non habet, prima origo a matre." (c)



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The presumption of law is, that the domicile of origin is retained, unless the change is proved. The burden of proving the change is cast on him who alleges it. (a) The domicile of origin prevails, until the party has not only acquired another, but has manifested, and carried into execution, an intention of abandoning his former domicile, and acquiring another as his sole domicile. (6)


The presumption in favour of the domicile of origin exists only when it is doubtful whether any other place has been chosen as that of a permanent or principal residence. It is repelled, when it clearly appears that all connexion with it has ceased, and the person's establishment has been formed in some other place. The latter is the domicile of choice.



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A new domicile cannot be acquired by intention alone : " Domicilium re et facto transfertur non nuda contestatione ;" (f) but having been once acquired, it may be retained by intention, without actual residence. Neither can it be acquired by residence alone, however long, without that intention. But, on the other hand, a domicile maybe acquired by residence for a single day, if that intention be clearly established.


The place of residence is, prima facie, the domicile, unless there be some motive for that residence, not in consistent with a clearly established intention to retain a permanent residence in another place.


 As the intention with which the new residence is taken may be often the subject of doubt and uncertainty, the Code affords the means by which it may be established, by permitting the party to declare his domicile to the mu nicipality of the place which the party has abandoned, and to that of the place to which he has transferred his domicile. Such declaration affords conclusive evidence of the existence of the intention. (a)


CHAPTER 3



As the intention with which the new residence is taken may be often the subject of doubt and uncertainty, the Code affords the means by which it may be established, by permitting the party to declare his domicile to the mu nicipality of the place which the party has abandoned, and to that of the place to which he has transferred his domicile. Such declaration affords conclusive evidence of the existence of the intention. (a)


Boullenois admits that the status of the person de pends on the law of his actual domicile, but he makes an exception in respect of the status of majority or minority, which he insists depends on the law of the domicile of origin. (c) Merlin, in the earlier edition of his '* Repertoire Universel, strenuously maintained the same opinion. (d) He has, however, since changed it, and is to be added to the number of those who consider that the status of majority or minority is governed by the law of the actual domicile, and not of the domicile of origin, (e)



page 131.....

It is an indispensable rule of law, as exercised in all civilized countries, that a man who contracts in a country, engages for a competent knowledge of the law of contracts in that country. If he rashly presume to contract without such knowledge, he must take the inconveniences resulting from such ignorance upon himself, and not attempt to throw them upon the other party, who has engaged under a proper knowledge and sense of the obligation which the law would impose upon him by virtue of that engagement. (a)




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