1808. GODSHALL υ. veyors who performed the duty, put the line of Coates's street in this place about two feet six inches southward of the accustomed line. In consequence of this the defendant could not MARIAM. have his complement of ground without interfering with the regulation of the plaintiff's lot; and he therefore moved the fence. There was also some evidence that the regulators themselves had since questioned their own regulation of Godshall's lot, as being founded on a mistake of the street line; and that there was more ground to the southward of the plaintiff, than was necessary to satisfy all claims. Upon these facts it was argued for the plaintiff, that the walls of his house, and the lines of his lot, were conclusively fixed by the regulation, and that the survey of Coates's street not being adventurer, and in a few years acquired a good deal of property. It is therefore reasonable to believe he felt the full force of this irresistible cement to locality and situation. This consideration founded on interest, furnishes the strongest proof that he had fixed on Wilmington as the place of his domicil. A remark of the unerring observer of human nature, that "where the treasure "is the heart will be also," may be here applied with strict propriety. Several witnesses say they believe he had fixed his residence at Wilmington; others say they believe he had not fixed it there. This appears to be mere opinion. Not a word from Guier bimself has been given in evidence; but his silence on the subject is an argument to shew his views were permanently fixed on that country, in which his affairs wore the most promising aspect. When he proposed to settle his affairs, he does not think of Connecticut, but of sending to Judge Booth at New-Castle, to draw his will in favour of that part of his family who were resident there. It is I think extremely doubtful whether voting and paying taxes are in any case necessary to constitute a domicil, which being a question of general law, cannot depend on the municipal regulations of any state or nation. Voting is confined to a few countries, and taxes may not always be demanded. Guier was a seafaring man; and one of the witnesses says that between the 14th January 1800 and the 15th October 1801, he sailed six or seven times. Is it any wonder a single man thus engaged in trade should escape taxation? It frequently happens that young men who never go abroad, are not discovered to be objects of taxation till they have reached the age of five or six and twenty. If Guier escaped taxation through the neglect of the officers of government, it is impossible to conceive how their neglect can have any effect on the question of domicil. The almost constant absence of a sailor from home, actually effaces from his mind voting at elections; yet it appears Guier was present at one election and offered his ticket, which, though not received, is a striking fact to shew he considered himself in the light of a citizen. The ticket not being received does not alter the nature of the transaction on the part of Guier; the evidence resulting from it, of intention to settle and reside, is the same as if it had been actually received 1808. GODSHALL υ. completed until after the regulation, could make no impression on the cause: but that at all events, that survey did not, and was not intended to, ascertain where the true line of Coates's street was, but to fix a line for its future course. That there- MARIAM. fore, for any thing that appeared, the regulation was right. For the defendant it was said, that the regulation, so far as it respected the unbuilt part of the lot, was not conclusive, and that as the plaintiff's lot was bounded by a thirty five feet corner lot, the whole question was, where the corner of Coates's street was, which the survey conclusively shewed. The Chief Justice charged the jury that there could be no doubt that the walls of the plaintiff's house were fixed irrevocably in 1798, by a regulation from which there was no appeal, but he would reserve the question whether the lines of the lot were also fixed. That the jury might then consider them as not fixed; and if So, he thought the survey was strong evidence to shew where the line As to his sailing one voyage from Philadelphia, at which time it is proba ble he obtained a certificate of his being a native of Connecticut and a citizen of the United States, they appear to be accidental circumstances, such as may be looked for in the life of a sailor, and no wise incompatible with his residence in another place. Employments of the most opposite character and description may have the same effect to produce a domicil. A man may be alike domiciled, whether he supports himself by ploughing the fields of his farm, or the waters of the ocean. It is not exclusively by any particular act that a domicil, generally speaking, is acquired; but by a train of conduct manifesting that the country in which he died was the place of his choice, and to all appearance, of his intended residence. The sailor who spends whole years in combating the winds and waves, and the contented husbandman whose devious steps seldom pass the limits of his farm, may in their different walks of life, exhibit equal evidence of being domiciled in a country. Every circumstance in the conduct of old Guier and his son Thomas, taking into view the unsettled mode of life of the latter, affords the fullest proof that they were both domiciled in Delaware. If the proof be stronger in either case, it is in the case of Thomas, who, though employed in traversing the globe from clime to clime, constantly returned to Wilmington, the source and centre of his business, the seat and abode of his friends and connexions. His "heart "untravelled" appears to have been immoveably fixed on the spot, to which he was attached by the powerful tie of interest, and the strongest obligations of social duty; and never for a moment to have pointed a wish to any other country. We are of opinion Thomas Guier was domiciled in the state of Delaware, during pupillage; and that he was also domiciled there after he became sui juris; and do decree that his personal property be distributed according to the laws of THE STATE OF Delaware. 1808. of Coates's street was, and where the defendant's lot began. The jury however found a verdict for the plaintiff. GODSHALL υ. MARIAM. A motion for a new trial was made by the defendant's counsel, because the verdict was against law and evidence; and this motion and the point reserved were now argued by Binney for the plaintiff, and by Milnor and Hopkinson for the defendants; but the argument was almost entirely confined to the conclusive nature of the regulation. TILGHMAN C. J. delivered the opinion of the court. The only question now to be decided by the court is, whether the regulation of the lines of a lot in the Northern Liberties of the city of Philadelphia, made by virtue of the act entitled "An act for appointing regulators in the southern parts of the "Northern Liberties of the city of Philadelphia, and for other purposes therein mentioned," (a) is conclusive on the parties, not only as to that part of the lot on which buildings are erected, but throughout the whole extent of it. 66 The act, after reciting in the preamble, that great inconvenience had ensued for want of surveyors or regulators to lay out the proper gutters, channels, and conduits for carrying off the waters," and to set out the lots and to regulate the walls "to be built between party and party," goes on to enact," that "the regulators shall upon application made to them have full 'power and authority to regulate and lay out the proper gutters, channels and conduits for the carrying off the waters "within the limits of the said described piece of land, and to enter upon the lands of any person or persons in order to set "out the foundations, and to regulate the walls to be built "between party and party as to the breadth and thickness "thereof, which foundations shall be equally laid on the lands "of the persons between whom such party wall is to be made." &c. &c. The third section inflicts a penalty on persons who shall begin to lay the foundation "of any party wall, or any wall "fronting on any of the streets," before the same is viewed and directed by the regulators. The fourth section gives an appeal to the justices of the next county Court of Common Pleas, in case either party, between whom such foundation or party wall is to be made, shall con (a) 9th March 1771, 1 St. Laws. 549. GODSHALL υ. ceive himself aggrieved by any order or direction of the regu- 1808. lators; and the justices are forthwith to summon a jury and proceed to determine the matter in dispute, according to the course of the common law. The fifth section ascertains the fee MARIAM. to be paid to the regulators for their trouble, "in setting out "and regulating the lines of each lot." These are the only parts of the law material in the present question. It appears then that although the preamble speaks of setting out the lots, yet the enacting part of the law gives no power to the regulators to enter on any man's land for any other purpose than that of regulating the foundations and party walls of buildings; consequently they have no power to enter at all for the bare purpose of ascertaining the lines of a lot, nor is there any appeal given but in case of a building. There is great reason why the decision of the regulators, unappealed from, should be conclusive as to the building; because if it were not, the walls which were built under the authority of officers, whom the party was obliged to employ, might be afterwards pulled down. This would be a grievance too ruinous to be submitted to, and cannot be intended to be the meaning of the law. Indeed considerable inconvenience may result from questioning the boundaries in any part of the lot, after a house has been built. And if it was in the power of the court to make or alter the law, they would prevent that inconvenience by directing that the lines fixed by the regulators should be conclusive. But in a case where valuable property is to be affected, they are not authorized to draw inferences from slight expressions, not warranted by the principal parts of the law. No express power is given to fix the lines of the lot, when there is no party wall. But it is objected that a fee is given "for setting out and regulating the lines of each lot." The answer is, that this cannot enlarge the power given before, but must be construed by reference to that power; that is to say, the fee is given for setting out and regulating the lines, so far as is necessary for the purpose of regulating the front and party walls; and it is evident that part or the whole of two lines at least, must be set out and regulated in order to do this. This construction renders the whole law consistent, without doing violence to any part of it. I am therefore of opinion that the parties are not concluded by the regulation made in that part of the lot, which lies back of the house. There must of course be a new trial, because the 1808. GODSHALL υ. court suppose that the jury found their verdict under an opinion that the act of the regulators was conclusive. The weight of the evidence was against the regulation. On the second trial, MARIAM the parties knowing precisely on what point the cause will turn, will come better prepared to contest the real merits, that is, the true location of Coates's street; for that will be the only matter in dispute. New Trial granted. Wednesday, A. obtains JACOBYOHE against WILLIAM and JOHN BARNET, administrators of HENRY BARNET. judgment for THIS ed of real ral children B. The real HIS was an appeal from the Circuit Court of Northamp ton county. a debt against B. Jacob Yohe the appellant married a daughter of Henry Barhis son-innet, and became indebted to his father-in-law in a considerable law, and then dies in sum, for which he gave his bond with warrant of attorney. testate seis. Judgment was entered against Yohe, and executions issued estate, and against his property both in the life time of Barnet and after leaving seve- his death, but without effect; the principal part of the judgment among whom remained unsatisfied, and Yohe was insolvent. Henry Barnet died is the wife of intestate; whereupon an inquest of partition was awarded by estate is di- the Orphan's Court; and his real estate, not being susceptible of vided by ina division into as many parts as there were claimants, was apquest into fewer parts praised by the inquest and ordered by the court to certain of than there the children and grandchildren upon the terms prescribed by are children,. which are al-law, viz. upon their giving good security, which in practice is a bond and recognisance, to pay to the other children their equal under the di- and proportionable part of the appraised value of the estate. No part of the real estate was ordered to Yohe and his wife, a bond shall who was still living, but he was entitled in right of his wife to be given by one fifth part of the valuation. lotted ac cordingly, rection of the law that those who take the land to the other children, B.'s wife among the number, for their respective purparts. B. is insolvent, and his debt to A. unpaid. The Orphan's Court may order B.'s debt to be deducted from the amount of the bond for his wife's part, and if necessary to ascertain the amount, may direct an issue. The bond directed to be given for the purpart of the valuation of real estate is personal property, and attended by all its incidents. The Courts of Pennsylvania have no authority to insist on a provision for the wife, when, the husband applies for her personal property. |