Page:Federal Reporter, 1st Series, Volume 5.djvu/159

 IN BE OBEEH. Id7 �constitution above quoted make it necessary, in order to prove a residence, that sometbing more be ehown than the f act that the petitioner bas lived at the barracka in the navy yard, as a marine, since May last. He has shown that he left the city of New York and came to Brooklyn. But by such act he neither lost his residence in New York nor gained a residence in Brooklyn, becaiise the act was done with the intent to re- turn to New York in case his application to be enlisted shouid prove unsuceessful. Thore was no fixed determination to abandon New York as his place of abode when he left New York and came to Brooklyn. He has also shown that before he enlisted he was present in Brooklyn during a small portion of a day after he left New York. The maxim de mininms non curat lez would Beem to be applicable to the short period cf time spent by the petitioner in Brooklyn prior to the enlist- ment, while going from New York to the navy yard for tho pni*poBe of enlisting. �The act of leaving New York and the act of enlisting in the navy yard were substan^ally consecutive acts. If, however, the nature of the case entitles the petitioner to demand a con- sideration of any evidence claiming to prove a scintilla of presence in Brooklyn prior to enlisting, it must be eaid that the petitioner, while proceeding from New York to the navy yard in Brooklyn, had no present intent to take up bis resi- dence in Brooklyn, but only to remain in Brooklyn in the capacity of a marine if his application to be enlisted shouid prevail. The act and intent required to establish a residence are wanting. "There must be a settled, fixed abode, and in- tention to remain, at least for a time, for business or other purposes, to constitute a residence within the legal meaning of that term." Nelson, J., Frost v. Birbin, 19 Wend. 14. Neither was a residence in Brooklyn acquired by the act of an enlistment at the Brooklyn navy yard, for that was incon- sistentwith an intent on his part to make Brooklyn his place of residence. By the very act of his enlisting he made the place of his abode thereafter dependent not upon his own wil], but upon the orders of his commanding officer. Some stress ����