ver; then, in April, 1890, the office was transferred to Salt Lake City and he went with it, and continued to be employed in it up to December, 1890. He then came east to Phillipsburg and remained in the east until March, 1891, when he returned to Salt Lake City and resumed work in the same office, and was still at work there when he swore to his petition on the 22d day of October, 1891, and also when he gave his evidence under the commission on the 19th day of March, 1892.

So that it appears, from the petitioner's own testimony, that the facts as to his actual habitancy for the six years and six months intervening between the time when he left this state, in the spring of 1885, and the time when he filed his petition on the 31st day of October, 1891, are, that for three months of the six years and six months he was an inhabitant of this state, and that for the other six years and three months his place of actual habitation was without this state, and in the States of Nebraska and Colorado and Territory of Utah. He says, however, that he always considered and spoke of Phillipsburg as his home; wrote it as his place of residence on hotel registers; when he married in June, 1886, he gave that as his residence, and that he never paid poll tax in the west, nor voted anywhere except at Phillipsburg. But he does not tell when he voted at Phillipsburg. He certainly did not after the spring of 1885. He also says that there was a room in his mother's house which was called his, where he kept pictures, books, shells and other like things up to the time of his mother's death in January, 1892, when these things were removed to his brother's house in Phillipsburg, where they have since remained. As already stated, he and the defendant were married on the 13th day of June, 1886, at Red Oak, Iowa, and lived together thereafter, as husband and wife, continuously until May, 1889. The petitioner says he and his wife never kept house, and stops there. He does not tell where they made their abiding place or home where they ate, slept and surrounded themselves with such things as their relation, comfort and position required them to have. In May, 1889, the defendant left the petitioner to visit her uncle in Chicago. The petitioner procured passes for her journey. After she reached Chicago she refused to return. The pe

titioner says she first wrote that she would have nothing more to do with him, and that afterwards he called on her in Chicago and urged her to return and she refused. The foregoing statement embraces, I believe, every fact entitled to the least consideration in determining the question now under consideration.

The decision of questions of disputed domicil are frequently surrounded with a great many practical difficulties. The evidence is often obscure, equivocal and contradictory. The acts or conduct of the person whose domicil is the subject of dispute will, in ' many cases, seem to indicate with certainty that his residence must have been in one place, while his declarations go to show that it was in another. That is the case here. If we look at the petitioner's acts alone, and remember that he left just after he had attained the age when he was at liberty to go where he pleased, engage in any pursuit he saw fit, and establish a new home for himself; that he went in search of a more genial climate, in order to protect himself against a disease which it was believed he had inherited, and which it was feared would surely claim him as its victim if he remained here; that he found such a climate together with steady and pleasant employment; that within a little over a year after he went away he married, and thus placed himself in a position where a home, in which he might set up his household gods, became, unless he is strangely different from other men, the natural desire of his heart; that although he lived with his wife for nearly three years, she and he were never, during that time, at his home of origin in this state; that he remained continuously absent from this state for over five years and six months, and that shortly after he came here in December, 1890, he returned to Salt Lake City, and at once, on his return, resumed the work he was doing when he left, and that he was still there, engaged in the same work, on the 31st day of October, 1891, when he swore to his petition in this case, the conclusion would seem to be well nigh unavoidable that he had abandoned his domicil of origin and established a new home. He swears, on the contrary, that he did not, but that his intention has always been to retain his domicil of origin. The actual intention of the person whose domicil is in dispute is, in cases of this kind, a fact of great importance, but the

best and most trustworthy evidence of it is found, as a general rule, in his acts rather than in his declarations. His declarations may be competent as evidence of his intentions, but they are by no means conclusive, and when they are contradicted by decisive acts of habitancy, as holding office, voting and the like, their probative force is very light. In two cases, decided by the supreme court of Massachusetts in 1879, it appeared that the two persons whose domicils were in dispute had, as they testified, made up their minds to change their permanent residences from Boston to Nahant, and that they subsequently gave notice, in writing to the taxing authorities of Boston that they had done so, but it likewise appeared that, after the alleged change, though they spent a part of their time at Nahant, they continued, for a part of each year, to occupy dwellings in Boston which were more in keeping with their means and position than those they lived in while at Nahant, and that acts of habitancy had been performed at both places. The jury found they were domiciled in Boston, and the court, after hearing the case on exceptions, ordered judgments to be entered on the verdicts, declaring that the evidence of the parties as to their intention was not conclusive, but their acts must also be considered. Wright v. Boston, 126 Mass. 161; Weld v. Boston, 126 Mass. 166.

My consideration of this case has led me to the conclusion that the decided weight of the evidence tends rather to show that the petitioner was not a resident or citizen of this state when he brought his suit than that he was; or, at least, that the evidence leaves his claim in that regard in a state of so much doubt and uncertainty that the court should not in a case like this, where the fact of citizenship constitutes the sole ground of jurisdiction, make a decree attempting to fix and declare his matrimonial status The petition must be dismissed.

NATIONALITY.

CITIZENSHIP AND RIGHT OF EXPATRIATION. PEQUIGNOT v. CITY OF DETROIT, 16 FED. REP. 211, (1883).

On motion for a New Trial.

The plaintiff brought suit against the city of Detroit to recover damages for personal injuries sustained by her, by reason of a defective walk across an alley which intersects Twenty-third street, between Fort and Lafayette. The plaintiff recovered a verdict, and defendant moved for a new trial upon the grounds stated in the opinion of the court.

John D. Conely, for plaintiff.

Henry M. Duffield, City Counselor, for defendant.

BROWN, J. The first error assigned by the defendant is based upon the ruling of the court, that the walk, upon which the plaintiff met her fall, was a crosswalk and not a sidewalk, within the meaning of the state act of 1879, No. 244. This act, which is entitled "An act for the collection of damages sustained by reason of defective public highways, streets, bridges, crosswalks, and culverts," creates a liability in favor of persons "sustaining bodily injury upon any of the public highways or streets in this state, by reason of neglect to keep such public highways or streets, and all bridges, crosswalks, and culverts in good repair."

We acquiesce in the opinion of the supreme court in City of Detroit v. Putnam, 45 Mich. 263, [S.C. 7 N. W. Rep. 815,] that this act does not include sidewalks. But we cannot perceive that this case has any bearing upon the question under consideration. We think the statute of 1879 was intended to distinguish between those portions of the streets which the city itself constructs and keeps in repair, and that other portion, viz., sidewalks, which it compels property-owners to build and keep in repair, rendering the city liable in one case and not in the other. Defendant's theory is that the alley begins at the outside of the sidewalk. But it seems quite

clear that an alley, to be serviceable for the passage of teams, must begin at the curbstone, between the sidewalk and the street. Suppose, for instance, that the property-owners upon the opposite sides of an alley should extend fences across the intervening space. It is too plain for argument that they would be liable for obstructing the alley. Every crosswalk is, in one sense, a sidewalk, because it is an extension of the sidewalk proper across an intervening space; but it seems to us to make no difference whether it crosses a street or an alley. In each case it crosses a highway for the passage of teams, and is a part of the street which the city itself builds and keeps in repair.

The main question in this case, however, relates to the alienage of the plaintiff, upon which new affidavits were offered upon this motion. The court charged upon the trial that as the plaintiff was a native of France, it did not sufficiently appear that she had ever become a citizen of the United States. The new affidavits show unequivocally that she at one time did become a citizen by marriage, but the question still remains to be determined whether at the time she brought this suit she was an alien or a citizen. Plaintiff was born in France, of French parents, who emigrated to this country when she was six or seven years old, but were never naturalized. In 1863 she was married to James Partridge, who was a native-born American citizen, and thereby under the act of February 10, 1855, (reproduced in the Revised Statutes, sec. 1994,) became a citizen of the United States. She lived with Partridge some 13 or 14 years, and was then divorced from him. Shortly thereafter she was married to Augustine Pequignot, who was himself born in France in 1835, and has never become an American citizen, or even declared his intention to do so. The plaintiff is still living in this state with him as his wife.

The case raises a novel and interesting question: whether an alien woman, who has once become an American citizen by operation of law, can resume her alienage by marriage to an alien husband. If we are bound by the case of Shanks v. Dupont, 3 Pet. 242, in its literalisms, then the plaintiff did not lose her citizenship by marrying a native of her country, an alien. In that case,

it was held that a native of Charleston, who married a British offi