compel the unwilling to do. I also think it a wholly unauthorized construction of the statute to hold that the acts of recognition, acknowledgment, etc., necessary to legitimize a natural child should be performed with the express intention on the part of the father of accomplishing that object. If the acts are in themselves such as the statute prescribes, I think they confer legitimacy without any reference to the intent with which they are performed. There is no danger to morality in recognizing the natural rights of illegitimate children as against their fathers, or other claimants of their estates, and there is no danger of encouraging the fabrication of spurious claims so long as strict proof of paternity is insisted upon." The foregoing views are not in harmony with the principles declared in the elaborate opinion of Mr. Justice Rhodes in the case of Pina v. Peck, 31 Cal. 359, and upon which decision appellants in the main rest this branch of their case. It is not our intention to analyze the soundness of the legal principles there laid down, otherwise than may have been incidentally done in what we have already said. Still, we might be allowed to say, no au-thority of courts or men learned in the law is presented in that opinion to support the views there declared, although, as we have seen, authority is not wanting to the contrary. Pina v. Peck, 31 Cal. 359, is not authority in this case, for two sufficient reasons: 1. But four justices participated in the decision (Justice Sanderson not taking part), and two of these justices concurred alone in the judgment. This fact entirely destroys the effect of the decision as an authority upon any and all matters therein discussed. 2. Justice Rhodes says at the very inception of his opinion: "It is contended by the defendants that this provision of the statute is in derogation of the common law, and must, therefore, be strictly construed. That doctrine was announced and applied by the court in the estate of Samuel Sanford, and we are of opinion. that the ruling is correct, beyond a doubt. As a consequence resulting from the operation of this rule, the acknowledgment must conform to the statute, and be complete in itself; that is to say, it must not require the aid of extrinsic evidence. When the parties are identified, and the instrument in writing is produced and proven, the court must be able to say from the instrument that the person who signed it thereby acknowledged himself to be the father of the illegitimate child therein named." Thus this decision was expressly based upon strict and rigid rules of statutory construction, and as we have seen, those rules of construction have now been entirely displaced, as to the codes, by rules liberal and humane in their character. That decision being expressly based upon strict rules of construction, and strict rules of construction. now being abolished, it cannot be said to be binding authority in a case which we are called upon to decide by an application of statutory rules of liberal construction. It is insisted that the following rule of construction, as declared by Judge Cooley in his Constitutional Limitations (p. 66), must be invoked in this case, to wit: "It has ever properly been held that the legislature, by enacting without material alteration a statute which has been judicially expounded by the highest court of the state, must be presumed to have intended that the same words should be received in the new statute in the sense which had been attributed to them in the old." There can be no question that if the rules of statutory construction were the same now as when Pina v. Peck, 31 Cal. 359, was decided, and the views there expressed had been adopted by a majority of the court, this principle of the construction of statutes would have controlling effect in this case, but it is equally true that if the rules of construction have been changed, such principle, in the very nature of things, could not maintain. For the foregoing reasons, let the judgment be affirmed. GUARDIANS. IN RE WILLIE RICE, 42 MICH., 528, (1880). HABEAS CORPUS. Submitted Jan. 20. Denied Jan. 21. Conely & Lucking for petitioner. An unauthorized appointment of a guardian by the probate court is absolutely void, and may be attacked collaterally or by. motion to vacate, Sears v. Terry, 26 Conn., 273; Dorman v. Ogbourne, 16 Ala., 759; Lacy v. William, 27 Mo., 280; Herring v. Goodson, 43 Miss., 392; Townsend v. Kendall, 4 Minn., 412; Wright v. Wright, 24 Mich., 180; People v. Dawell, 25 Mich., 247; comity, if not absolute right, requires that the foreign guardian have the child. Wharton's Confl. Laws, §§ 259, 263; 3 Redf. Wills, 448, 450; Schouler's Dom. Rel., 443; Woodworth v. Spring, 4 Allen, 321; Nugent v. Vetzera, L. R. 2 Eq., 704; the right of the domiciliary guardian of an infant of tender age is as nearly absolute as is that of a parent, and should prevail, except in those cases of abuse or misconduct where, under similar circumstances, the right of a father would be interfered with, Di Savini v. Lonsada, 18 W. R., 425; Townsend v. Kendall, 4 Minn., 419; Wharton's Confl. Laws, §§ 262-263; a man's domicile continues till a new one is acquired, Neff v. Neff, 1 Binn., 351; Fisher's Dig., tit. Domicile, col., 9444; Gilman v. Gilman, 52 Me., 165; Phillimore on Domicile, 21; the doctrine that where one dies in journeying towards an intended domicile, he loses the old domicile, is not at all sustained by the facts of the case in which the doctrine had its origin, Munroe v. Douglas, 5 Maddock, 246; and is severely criticised in the following: Harvard College v. Gore, 5 Pick., 374, 375; Somerville v. Somerville, 5 Vesey, 786-7; Munro v. Munro, 7 Cl. & F., 876; Bell., v. Kennedy, 1 L. R. Scotch & Div. App., 307; actual presence within the territory is essential to the acquisition of a new domicile, Sears v. Boston, 1 Met., 250; Abington v. North Bridgewater, 23 Pick., 170; Thorndike v. Boston, 1 Met., 242; in a suit for divorce under a statute requiring the complainant to be a resident of Massachusetts at the time the cause of divorce occurred, it was held that where the parties left Massachusetts to remove to Colorado, and stopped four months in Philadelphia on the way, at which place the cause of divorce occurred, that the complainant was domiciled in Massachusetts, Shaw v. Shaw, 98 Mass., 158; the domicile of an infant is that of its father, and an infant cannot of its own motion change its domicile, Schouler's Dom. Relations, 412; School Directors v. James, 2 W. & S., 570. T. A. Wilson and Austin Blair against the petition. CAMPBELL, J. A habeas corpus was issued in this case on behalf of a Pennsylvania guardian to obtain possession of the infant over whom a guardian had been appointed by the probate court of Jackson county before any appointment was made in Pennsylvania. The parents of the child, having formerly lived in Philadelphia, determined to change their residence and left that city with. their son to go to Kansas to reside. They were both killed and the child injured by a railroad collision at Jackson last October. The boy, who is but three years old, was cared for at that city until an aunt, Mary C. Rogers, his mother's sister, came on and has since taken care of him, and was in December last appointed guardian. Afterwards an uncle in Philadelphia applied to the Orphan's Court, and a corporation, which is apparently created for trust purposes, was made guardian of the estate, and an aunt, his father's sister, Mrs. Ellen Taney, appointed guardian of the person. Our laws usually contemplate the appointment of a guardian who has custody of the estate, whoever may have the custody of the person, and provide for no corporation guardianships. All of the infant's property is now in Michigan, and his chief interest is supposed to be such compensation as may be obtained for his own injuries and the death of his parents. Our laws contemplate that guardians may be appointed for infants, whatever may be their residence, who have property in this State, and do not recognize any absolute right in foreign guardians to be recognized. Whatever respect is paid them springs from comity and not from law, and is therefore not a matter of right. If an infant, after having a guardian appointed at his domicile, where he has been in that guardian's personal custody, should be taken or found elsewhere, great respect should be paid to the claims of such guardian, which would probably in most cases be considered as paramount. But where, on the other hand, the foreign appointment secures no control over the infant's estate, and has been created in a jurisdiction from which he was personally absent, the case is materially different. It may or may not be that Philadelphia is to be regarded in law as technically the domicile of the parents and infant, inasmuch as they were still on the road to another, and had not reached it. Upon this we express no opinion, and assume that it may be. But for purposes of comity, the domicile is chiefly respected because it is in fact the home; and where there has been a departure with no design of returning, the legal character of the old domicile does not make it so controlling in matters of policy as it would be under other circumstances, although for other matters it may possibly control. In the present case there can be no doubt that the Jackson probate court had power to appoint the guardian, and the infant's interests are also chiefly here, which made it a very proper thing. to make some appointment here, whatever might be done elsewhere. The Michigan guardian is as near a relative as any other living relative, and the Pennsylvania guardian has not as ful! powers. There is nothing in the case which indicates that the latter should be preferred, and we do not feel that there is any duty imposed upon us, under the circumstances, of changing the custody. The other Justices concurred. IN RE STOCKMAN, 71 MICH. 180, (1888). SHERWOOD, C. J. Lucile Stockman is now nine years of age, and resides with her maternal grandparents in Port Huron, who are her guardians in this State, having received their appointment as such on October 19, 1885. The paternal grandparents reside in Washington, D. C., and were duly appointed testamentary |