The plaintiffs in error insist that this finding is against the evidence.

We have given the testimony, voluminous as it is, a careful reading and full consideration, and have reached the conclusion it supports the decree.

It is said by authoritative text-writers, that the term "domicile," in its ordinary acceptation, means the place where a person lives or has his home. In a strict legal sense, that is properly the domicile of a person, where he has his true, fixed, permanent home and principal establishment, and to which, whenever he is absent, he has the intention of returning. Story's Confl. of Laws, 39, Sec. 41. It is further said, actual residence is not indispensable to retain a domicile after it is once acquired; but it is retained, animo solo, by the mere intention not to change it and adopt another. Ib. 42, Sec. 44.

Testing this case by these rules, the finding was clearly right. It is not denied that the domicile of Dr. Hayes, from 1852 to May, 1860, was Rock Island, at which time, there being some disagreement with his wife, she went from their home in Rock Island on a visit of uncertain duration to her relatives in Washington city, and he himself went to Bentonsport, in the State of Iowa, to supply a pulpit there for one year. Before he left Rock Island he rented the homestead and a part of the furniture, storing the balance on the premises. When the year expired he engaged for another year, which terminated in the spring of 1862, when he left, spending the spring and summer in visiting his wife in Washington and his friends in the East. In the fall of 1862 he returned to this State, visiting some of his relatives, and spent the winter with a brother, Gordon Hayes, living at Brighton, Iowa. In the spring of 1863 he accepted an invitation to supply a pulpit at Kossuth, Iowa, for one year, and after its expiration he renewed the engagement for another year, but neither at Bentonsport nor at Kossuth was he installed as pastor. Having some spare funds, he bought in Kossuth a house and lot, on speculation, in which he slept, taking his meals at a hotel. He voted at the election in 1863, and at the presidential election in 1864, the laws of Iowa conferring the elective franchise on a resident for six months.

That the house was not purchased as a residence is clear from the testimony, it was an investment merely.

When his engagement at Kossuth closed, in the summer of 1865, he left that place and returned to Rock Island, staying there but a short time, and then proceeding to Washington city, where his wife remained engaged in keeping a boarding-house. With the exception of about two months in 1866, which he spent at Rock Island, engaged in making repairs on his property there, he remained at Washington with his wife, until the last of June or first of July, 1867, when he returned to Rock Island, staying but a short time, proceeded to Kossuth, collected the last payment due on the property he had there sold, and returned to Rock Island with his library and some other articles of property, and while there, on the twentieth of July, 1867, he made a sudden exit from this world.

At the time of his death he was the owner of several houses and lots in the city of Rock Island, and other real estate in other parts of the State. His wife, the defendant in this suit, was at no time in Iowa, whilst her husband resided there; and after his death, closing up her affairs in Washington, she returned to the old homestead, where she has since remained.

There is a strong current running through all the mass of testimony tending to show it was never the intention of Dr. Hayes to make Iowa his home. It is inferable he would have done so had his wife joined him there and been pleased with the place and prospects. All his letters, and much of the testimony, go to show Iowa was not regarded by him as his home. Nothing can be inferred from the fact of his having voted there; that act was consistent with his domicile in this State, the law of Iowa giving the right to a resident of six months. He was such resident, undoubtedly, and as such had a right to vote. This could, by no possibility, effect a change of domicile. To effect a change of domicile there must be an actual abandonment of the first domicile, coupled with an intention not to return to it, and there must be a new domicile acquired by actual residence within another jurisdiction, coupled with the intention of making the last acquired residence a permanent home. Nothing of this is discernible in

the testimony in this record. The case of Smith v. The People, 44 Ill. 16, may be referred to in support of this doctrine, and other cases cited. Smith et al. v. Croom et al. 7 Fla. 200; Shaw v. Shaw, 98 Mass. 158. But the doctrine does not need the citation of authorities in its support.

There can be no doubt that the unsettled condition of the deceased was in a great degree owing to domestic disturbances. The great bulk of his property was in Rock Island, and to that place his inclinations would naturally tend. To that his thoughts would revert, for it was his home, which he had never abandoned; "He still had hopes-his long vexations past

There to return, and die at home at last;"

and his hope was accomplished.

It is conceded, domicile is a question of fact and intention. This is the proposition we have argued, and from the evidence we are satisfied Dr. Hayes had no fixed, permanent home in Iowa, nor any other home than Rock Island, and the circuit court in so finding found the truth, as we understand it. And the decree of that court must be affirmed. The domicile of succession to the estate of Dr. Hayes was in the State of Illinois at the time of his death.

Decree affirmed.

DOMICILS OF ORIGIN AND OF CHOICE.

UDNY V. UDNY. 1. L. R. SCOTCH & DIV. APP. CS. 441. (1869.) THE late Colonel John Robert Fullerton Udny, of Udny, in the county of Aberdeen, though born at Leghorn, where his father was consul, had by paternity his domicil in Scotland. At the age of fifteen, in the year 1794, he was sent to Edinburgh, where he remained for three years. In 1797 he became an officer in the Guards. In 1802 he succeeded to the family estate. In 1812 he married Miss Emily Fitghugh,-retired from the army,-and took upon lease a house in London, where he resided for thirty-two years, paying occasional visits to Aberdeenshire.

In 1844, having got into pecuniary difficulties, he broke up his establishment in London and repaired to Boulogne, where he

remained for nine years, occasionally, as before, visiting Scotland. In 1846 his wife died, leaving the only child of her marriage, a son, who, in 1859, died a bachelor.

Some time after the death of his wife Colonel Undy formed at Boulogne a connection with Miss Ann Allat, which resulted in the birth at Camberwell, in Surrey, on the 9th of May, 1853, of a son, the above respondent, whose parents were undoubtedly unmarried when he came into the world. They were, however, united afterwards in holy matrimony at Ormiston, in Scotland, on the 2nd of January, 1854, and the question was whether the Respondent, under the circumstances of the case, had become legitimate per subsequens matrimonium.

The Court of Session (First Division) on the 14th of December, 1866 (3rd Series, vol. v. p. 164), decided that Colonel Udny's domicil of origin was Scotch, and that he had never altered or lost it, notwithstanding his long absences from Scotland. They therefore found that his son, the Respondent, "though illegitimate at his birth, was legitimated by the subsequent marriage of his parents." Hence this appeal, which the House regarded as involving questions of greatly more than ordinary importance.

The Appellant argued his own case.

Sir Roundell Palmer, Q. C., Mr. Mellish, Q. C., Mr. Fraser, and Mr. Bristow, appeared for the Respondent.

The following opinions of the Law Peers fully state the facts, the authorities, and the legal reasoning.

THE LORD CHANCELLOR:

My Lords, In this case the Appellant prays a judicial declaration that the Respondent is a bastard,-and is not entitled to succeed to the entailed estates of Udny, in Aberdeenshire.

The question depends upon what shall be determined to have been the domicil of the Respondent's father, the late Colonel Udny, at the time of his birth,-at the time of the Respondent's birth, and at the time of the Colonel's marriage with the Respondent's mother.

The Appellant, who argued his case in person with very considerable ability, contended:-First: That the domicil of origin of Colonel Udny was English. Secondly: That even if that were not

so, yet that at the time of his first marriage, in 1812, he had abandoned Scotland for England, sold his commission in the army, took a house on lease for a long term in London, and resided there till he left England for France in 1844, for the purpose of avoiding his creditors; and that having thus acquired an English domicil he retained it, and never re-acquired his Scotch domicil. Thirdly: That, at all events, if he did recover his Scotch domicil, yet it was not recovered at the date of the Respondent's birth in May, 1853, nor even at the date of the intermarriage of the Respondent's parents in January, 1854.

As regards the first question, your Lordships did not hear the Respondents. You were satisfied that Colonel Udny's father, the consul, had never abandoned his Scottish domicil. Consequently you held that Colonel Udny's own domicil of origin was clearly Scotch, that having been the domicil of his father at the Colonel's birth.

A more difficult inquiry arose as to the domicil of Colonel Udny at the date of the Respondent's birth in May, 1853.

Colonel Udny appears to have left the army about the same time that he married his first wife, viz. in 1812, when he executed a contract and other instruments connected with his marriage, containing provisions referable to Scottish law, and describing himself as of Udny, in the county of Aberdeen. He, on his marriage, however, took a long lease of a house in London, in which he resided till 1844. He made frequent visits to Scotland, but had no residence there. He at one time contemplated restoring Udny Castle and even three years after he had commenced his residence in London appears to have still thought it possible that he might complete the restoration-and plans were about that time submitted to him for that purpose. For many years, however, he seems to have abandoned all hope of so doing, owing to his means being insufficient. He was appointed a magistrate in Scotland, but appears not to have acted as such. When in Scotland he usually resided with friends, but occassionally at hotels in the neighborhood of his property, and he continually received detailed accounts of the estates, and took much interest in their management. His choice of England as a residence appears to have been