purpose to remain, or that when he returned to Cited-93 U. S., 609, 612; 96 U. S., 311; 6 Sawy., 277; Louisville he had any intent other than to live 27 Ohio St., 612; 22 Am. Rep., 346.

there as he had done before his departure. Domicil has been thus defined: "A residence at a particular place accompanied with positive or presumptive proof of an intention to remain there for an unlimited time." Guier v. O'Daniel, 1 Binn., 349, n. This definition is approved by Phillimore in his work on the subject. P. 13. By the term "domicil," in its ordinary ac ceptation, is meant the place where a person lives and has his home. Story, Confi. L., sec. 41. The place where a person lives is taken to be his domicil until facts adduced establish the contrary. Bruce v. Bruce, 2 Bos. & Pull., 229, n.; Bempde v. Johnstone, 3 Ves., 201; Stanley v. Bernes, 3 Hagg. Eccl., 374, 437; Best, Pres.,

235.

The proof of the domicil of the claimant at Louisville is sufficient. There is no controversy between the parties on that proposition. We need not, therefore, further consider the sub. ject.

EDWARD DUPASSEUR, Piff. in Err.,

v.

ALBIN ROCHEREAU.

(See S. C., 21 Wall., 130-138.)

State judgment, when reviewed-Federal judg ment-effect of prior judgment-when juris diction denied.

*1. When in a case in a State Court a right or im

munity is set up under and by virtue of a judgment of a court of the United States, and the decision is against such right or immunity, a case is presented for removal and review by writ of error to the Supreme Court of the United States, under the Act of February 5th, 1867.

2. In such a case the Supreme Court will examine and inquire whether or not due validity and effect have been accorded to the judgment of the Federal Court, and if they have not, and the right or immunity claimed has been thereby lost, it will reverse the judgment of the State Court. not been accorded to the judgment of the Federal 3. Whether due validity and effect have or have Court,will depend on the circumstances of the case. If jurisdiction of the case was acquired only by reason of the citizenship of the parties, and the state law alone was administered, then only such validity and effect can be claimed for the judgment as would be due to the judgment of the State Courts under like circumstances.

A domicil once acquired is presumed to continue until it is shown to have been changed. Somerville v. Somerville, 5 Ves., 787; Harvard Coll. v. Gore, 5 Pick., 370; Whart. Confl. L., sec. 55. Where a change of domicil is alleged the burden of proving it rests upon the person making the allegation. Crookenden v. Fuller, 1 Swab. & Tr., 441; Hodgson v. De Beauchesne, 12 Moore, P. C., 288. 1858. To constitute the the new domicil two things are indispensable: First, residence in the new locality; and, second, the intention to remain there. The change cannot be made except facto et animo. Both are alike necessary. Either without the other is insufficient. Mere absence from a fixed home, however long continued, cannot work the change. There must be the animus to change the prior domicil for another. Until the new one is acquired, the old one remains. Whart.not bound by the former judgment on the question Confl. L.,sec. 55, and the authorities there cited. These principles are axiomatic in the law upon the subject.

When the claimant left Louisville it would have been illegal to take up his abode in the territory whither he was going. Such a purpose is not to be presumed. The presumption is the other way. To be established it must be proved. 12 Moore, P. C., supra. Among the circumstances usually relied upon to establish the an imus manendi are: declarations of the party; the exercise of political rights; the payment of personal taxes; a house of residence, and a place of business. Phillim., 100; Whart., sec. 62, and post. All these indicia are wanting in the case of the claimant.

The rules of law applied to the affirmative facts, without the aid of the negative consider ations to which we have adverted, are conclusive against him. His purchase of the cotton involved the same legal consequences as if it had been made by an agent whom he sent to make it.

Obviously, important further facts bearing on the question might easily have been put in evidence by either party. We regret that it was not done. As the case is presented, our conclusion is necessarily adverse to the appellant. The judgment of the Court of Claims is af firmed.

4. The judgment was rendered by the Circuit Court of the United States for Louisiana, on a vendor's privilege and mortgage, declaring it to be the sold the property clear of all prior liens; and the first lien and privilege on the land, and the marshal mortgagee purchased and paid into court for the benefit of subsequent liens, the surplus of his bid and sale were set up by way of defense to a suit beyond the amount of his own debt. This judgment brought in the State Court by another mortgagee who claimed priority to the first mortgage and who had not been made a party to the suit in the circuit court. The State Court held that the plaintiff was

of priority, not being a party to the suit. The case states by writ of error, and this court held that the was brought to the Supreme Court of the United

State Court did not refuse to accord due force and effect to the judgment; that such a judgment in the State Courts would not be conclusive on the point in question, and the judgment of the circuit court could not have any greater force or effect than judgments in the State Courts.

[No. 82.]

Submitted Nov. 24, 1874. New briefs ordered to be filed Dec. 14, 1874. Briefs submitted Feb. 1, 1875. Decided Feb. 15, 1875.

order of the court, presented upon the following question, viz.:

Whether or not the proceeding in the Circuit Court of the United States, instituted by Edward Dupasseur, for enforcing the vendor's privilege, on the property in controversy, was or was not, by the law of Louisiana, a proceed ing in rem, binding on Rochereau and all other persons claiming liens thereon, without making them actual parties."

The case is fully stated by the court.
Messrs. Allan C. Story, T. J Durant. E.
Roby and Wm. Grant, for plaintiff in error:

In nearly every State of the Union, there exists some statutory proceeding in rem for the foreclosure of mortgages upon real estate. In many of the States, prominently in Pennsylva nia. Iowa and Illinois, this is called a scire facias, and is held a proceeding in rem to enforce a specific lien, and not to obtain a judgment in personam. It creates no lien on other property, and only directs a sale of the mortgaged prem ises, to satisfy the mortgage debt and costs. Woodbury v. Manlove, 14 Ill., 213; Osgood v. Stevens, 25 Ills., 89.

No defense can be interposed to such a pro ceeding except payment, discharge, release or satisfaction, or that the mortgage was never a valid lien on the land.

Messrs. Louis Janin (first arg.), Charles Andrew Johnson, and E. & A. C. Janin (re-arg.), for defendant in error:

1. It was not a proceeding in rem in point of form, because under the law regulating practice in Louisiana, the action is only properly in rem when the property is abandoned, or the owner unknown or absent (C. P., 285, sec. 4. 292), which was not the case here, the suit having taken the form of an ordinary action of debt, preceded by citation and concluding with a praver for a personal judgment against the debtor for the amount due to which suit the defendant appeared in person; whereas, the proceeding in rem lays hold of the property without personal notice to anyone.

2. It was not a proceeding in rem in substance or in legal effect, since the judgment rendered in the case could only be executed in conformity to the rules regulating sheriff's sales, and that by reason of the law controlling such sales in Louisiana, that judgment could not deal with the property as property is dealt with under decrees which are properly in rem; that is to say, could not sell it in its entirety and free of incumbrances, having priority over that of the seizing creditor, a prohibition which, under article 684, may defeat a sale altogether; whereas, the characteristic feature of the proceeding in rem, as it affects the property condemned by the decree is, that it sells it in its entirety, free of all incum It is a proceeding at law, and governed by prac-brance, and that the price for which it is sold tice of courts of law and not courts of equity. | stands in lieu of the property. No persons but the mortgagor, or, if dead, his executor or administrator, are required to be made parties to such a proceeding. Assignees in bankruptcy, as well as subsequent purchasers and incumbrancers, are required to take notice of proceedings by scire facias, and to protect their own rights.

White v. Watkins, 23 Ills., 480; Carpenter v. Mooers, 26 Ills., 162.

Chickering v. Failes, 26 Ill., 507; Doerow v. Kelly. 1 Dall., 142; Hartman v. Clarke, 11 Ia.. 510.

By the law of Louisiana, a proceeding to foreclose a mortgage is styled "an hypothecary action." The hypothecary action is a real action which the creditor brings against the property which has been hypothecated to him by his debtor, in order to have it seized and sold for the payment of his debts." C. P., art. 61.

The hypothecary action, like all real actions, follows the property to which it is attached, in whatever hands it may be found; but it is subject to different rules, according as the property may be in the possession of the debtor, his heirs or third persons." C. P., art. 62.

Articles 63 to 74, prescribe the rules of procedure governing this action, which the Su preme Court of Louisiana has declared to be essentially a proceeding in rem.

Moore v. Allain, 10 La., 490; Nathan v. Lee, 2 Mart. (N. S.). (La.), 32; Murphy v. Jandot, 2 Rob. (La.), 378; Lawrence v. Burthe, 15 La., 267; Haley v. Dubois, 10 Rob., 54; Barrow v. Bk. of La., 2 La. Ann., 453; Ducros v. Fortin, 8 Rob. (La.), 167.

In a collateral proceeding like the present, the order confirming the sale, approving the report of the marshal, and ordering the purchase money paid into court, is conclusive.

Parker v. Kane, 22 How, 14 (63 U. S., XVI., 290); Beauregard v. N. O., 18 How., 497 (59 V. S., XV.. 469).

By article 683 of the Code of Practice, the purchaser is to retain in his own hands, out of the price bid, the amount required to satisfy a mortgage or privilege having priority over that of the judgment creditor; yet the lien of such prior incumbrance is not at all removed from the property, or transferred to the part of the price so retained.

It is at the option of the purchaser, when the property is subject to a mortgage anterior in time to the lien of the judgment creditor, whether he will pay over the amount retained in his hands or not.

Broussard v. Philips, 6 Mart. (N. S.), 310; Smith v. Blunt, 2 La., 135.

If he does not, the property will be seized and sold by order of court, to satisfy the prior incumbrance, even though the purchaser has sold again. If the purchaser sells the property, all recourse against him in any shape ceases, and the mortgage creditor must pursue the property in other hands.

Desobry v. Carmena, 9 La. Ann., 180.

We contend that our mortgage had acquired a preference over his privilege and mortgage, through his failure to re-inscribe in time.

The pact de non alienando, does not affect the case or the question propounded by the court. In the first place, the act of sale to Sauvé does not appear in the record and there is, conse quently, nothing in the record to show the existence of this pact. Without this clause the property cannot be attacked in the hands of a third possessor, except by the hypothecary action.

Nathan v. Lee, 2 Mart. (N. S.), 32; Maskell v. Merriman, 9 Rob., 70; Ducros v. Fortin. 8 Rob., 165; Williams v. Morancy, 3 La. Ann., 227; Brown v. Routh, 4 La. Ann., 270.

Dupasseur having chosen to proceed, via or.

Sauvé borrowed $37,011.99 of Edward Dupasseur, the defendant, to pay this judgment, and gave him a new note for that amount, and Dupasseur was, by a notarial act, subrogated to the rights of Jacobs in the judgment and mortgage.

that no persons are bound by a judgment or decree except those who are parties to it, and have had an opportunity of presenting their rights. The only apparent exception to this rule in general, is the effect of a proceeding in rem, which from the necessity of the case is binding On the first of December, 1863, Dupasseur & on all persons. This exception is only apparent, Co., in right of Dupasseur, filed a petition in for indeed in that case all persons having any the Circuit Court of the United States for a seq- interest in the thing are deemed parties, and uestration of the crops, and for judgment, to have the right to intervene pro interesse suo; be paid by right of special mortgage and with and if, after the lawful publications of notice vendor's lien and privilege, before all other cred- have been made, they fail to do so, they are itors. No one was made a party to this suit ex- considered as having acquiesced in the exercise cept Pierre Sauvé. On the 23d of February. of the jurisdiction. A further exception, in 1865, judgment was rendered in this case, to the Louisiana, arises from the pact de non alienando effect that Dupasseur recover from Sauvé the in mortgages, which dispenses with the necesamount sued for, with vendor's lien and privi- sity of making subsequent grantees or mortlege upon the plantation in question; and an ex-gagees parties in a proceeding to enforce pay ecution was issued thereon, by virtue of which the Marshal, on the 5th of May, 1866, sold the property to Dupasseur for $64,151, being $15,046 more than sufficient to satisfy his claim. The balance was paid to the Marshal and by him paid into the Circuit Court of the United States, to be disposed of according to law. These are the judgment and sale under which Dupasseur claimed the property, and which he set up in his answer by way of defense, and which, as he now claims, the Supreme Court of Louisiana ignored and decided to be insufficient to bar the claim of Rochereau under his mortgage.

The question with which we are concerned is, whether the Supreme Court of Louisiana, in deciding against the claim of Dupasseur, refused to acknowledge the proper validity and effect of this judgment, and decided against such validity and effect.

The only effect that can be justly claimed for it, is such as would belong to judgments of the State Courts rendered under similar circumstances. Dupasseur & Co. were citizens of France, and brought the suit in the Circuit Court of the United States as such citizens; and, consequently, that court, deriving its jurisdiction solely from the citizenship of the parties, was in the exercise of jurisdiction to administer the laws of the State, and its proceedings were had in accordance with the forms and course of proceeding in the State Courts. It is apparent, therefore, that no higher sanctity or effect can be claimed for the judgment of the Circuit Court of the United States rendered in such a case under such circumstances than is due to the judgments of the State Courts in a like case and under similar circumstances. If, by the laws of a State, a judgment like that rendered by the circuit court would have had a binding effect as against Rochereau, if it had been rendered in a State Court, then it should have the same effect, being rendered by the circuit court. If such effect is not conceded to it, but is refused, then due validity and effect are not given to it, and a case is made for the interposition of the power of reversal conferred upon this court.

We are bound to inquire, therefore, whether the judgment of the circuit court thus brought in question would have had the effect of binding and concluding Rochereau if it had been rendered in a State Court. We have examined this question with some care, and have come to the conclusion that it would not.

The same general rule of law and justice prevails in Louisiana as elsewhere, to the effect

ment of the mortgage. They are to take notice at their peril.

In this case, Rochereau was not made a party to the suit of Dupasseur in the Circuit Court of the United States; and the only questions remaining, therefore, are whether that was a proceeding in rem or whether Rochereau was a subsequent mortgagee to Dupasseur.

The fact that a sequestration was issued does not make the proceeding one in rem, as that was a mere ancillary process for preserving the movables and crops on the mortgaged property from waste and spoliation. It did not, in the slightest degree, change the character of the suit. And, in truth, it was never executed, as the return of the Marshal shows. The question then recurs as to the character of the suit itself. This has already been described. It was an action brought against Pierre Sauvé on the judgment obtained against him by George R. Jacobs in the District Court for Jefferson Parish, which judg ment had been, in effect, assigned to Dupasseur. The petition prayed, besides a sequestration of the crops, etc., that Sauvé might be cited to appear and answer; that judgment might be rendered in favor of the petitioner for the sum of $37,011.99, and interest and costs (the amount of the previous judgment) to be paid by right of special mortgage and with vendor's lien and privilege upon the plantation, slaves, stock, etc., and that the same might be sold for cash for an amount sufficient to pay said judgment by preference, right of special mortgage and vendor's lien and privilege, and before all other creditors. This was, therefore, nothing but the ordinary hypothecary action brought to enforce payment of a special mortgage. It is called a real action in the Code of Practice, because it seeks the sale of particular property liable to the plaintiff's mortgage. But this does not, necessarily, make it a proceeding in rem in the sense of which we have spoken. It is brought against the person in possession, as well as the property, and the creditor can only seize and sell such property, after having obtained judgment against the debtor in the usual form. Code Pr., art. 64.

The case is, therefore, clearly not a proceeding in rem properly so called.

Then was Rochereau a subsequent mortgagee to Dupasseur? Was the latter entitled to priority? If so, Rochereau would be bound by the judgment though not made a party. But he contends that his is the prior lien and not the subsequent one.

Now, we can find nothing in the Code of | Argued Feb. 5, 1875. Practice or in the judicial decisions of the State

of Louisiana, which goes to show that Rocher. IN ERROR to the Circuit Court of the United eau or any other person claiming a prior lien to that of Dupasseur on the property in question would be concluded by this judgment and forever estopped from showing that truth. Unless there is something peculiar in the Lousiana laws which makes the effect of the judgment different from what it would be under other systems of jurisprudence, prior mortgagees, and those having elder titles not made parties to the suit, cannot be affected by the judgment.

Service on corporation-defense not made in court the City from the consequences which have