alone effect could be given to the paper propounded in this allegation.

If I had regarded this case as capable of being proved at all, I should still have thought that it would have been impossible to prove it under the present allegation. It would have appeared to me that this lady had, by an act of her own volition, by her own spontaneous act, chosen and acquired a foreign domicil, and that that fact was quite inconsistent with the statement in this allegation, that she had acquired that domicil not by her own volition, but, (it might be) in spite of her own volition, by becoming the wife of a domiciled Frenchman. But, my Lords, as the only effect of giv ing leave to amend would be, that a case would be brought forward which it would be utterly impossible to sustain, I entirely concur in the conclusion which my noble and learned friend has proposed, that this appeal should be dismissed and, as he suggests, without

costs.

The LORD CHANCELLOR (Lord CAMPBELL):

My Lords, as I had not the advantage of hearing the whole [* 423] argument in this case, I refrain from giving any * opinion upon the general merits of it. But I did hear one question argued, which was a separate question; it was very ably argued on both sides; and I think it may be proper that I should say that upon that question I entirely concur in the opinion which has been expressed by my two noble and learned friends. The first marriage in 1822 remained in full force: there was no dissolution of that marriage, nor any judicial séparation de corps, as the French call it; there was no such separation as would even amount to a divorce à mensâ et thoro. I am quite clear therefore that this lady was not in a situation to acquire a new domicil separate from that of her husband. Upon the other question to which my noble and learned friend has referred, I abstain from giving any opinion. It it quite clear that the mere consent of the husband that she should live elsewhere, would confer no right upon her to acquire a foreign domicil.

Order or decree appealed from affirmed, and appeal dismissed without costs.

The principal case was followed and the rule applied by the Judge Ordinary. Sir CRESSWELL CRESSWELL, in Yelvertoa v. Yelverton (1859), 1 Sw. & Tr. 574, where the law was laid down as follows (p. 584): "The domicil of the husband is the domicil of the wife; and even supposing him to have been guilty of such misconduct as would furnish her with a defence to a suit by him for restitution of conjugal rights, she could not on that ground acquire another domicil for herself, as was recently held by the House of Lords in Dolphin v. Robins." The same rule was followed by Sir J. PHILLIMORE in Le Sueur v. Le Sueur (1876), 1 P. D. 139, 45 L. J. P. 73, 34 L. T. 511, 24 W. R. 616; and was again recognised by the President, Sir J. HANNEN in Firebrace v. Firebrace (1878), 4 P. D. 63, 47 L. J. P. 41, 39 L. T. 94, 26 W. R. 617; by the House of Lords in Harvie v. Farnie (1882), 8 App. Cas. 43, 52 L. J. P. D. & A. 33, 48 L. T. 273, 31 W. R. 433 (No. 1 of "Conflict of Laws," 5 R. C. 703); and by Mr. Justice BARNES in Green v. Green (31 Jan. 1893), 1893, P. 89, 62 L. J. P. 112, 68 L. T. 261, 41 W. R. 591. It is, lastly, inferentially recognised by the judgment of the Judicial Committee in Le Mesurier v. Le Mesurier (29 June, 1895), 1895, App. Cas. 517, where the rule that jurisdiction to pronounce a decree of divorce a vinculo depends on the domicil (see 5 R. C. 703) is confirmed on an exhaustive review of the cases.

AMERICAN NOTES.

This case is largely cited in Jacobs on Domicil, and it expresses the general doctrine of this country upon the point in question. The wife receives the domicil of the husband upon marriage, and it changes with his. See notes to Harvey v. Farnie, ante, vol. 5, p. 707; Penna. v. Ravenel, 21 Howard (U. S. Sup. Ct.), 103; Greene v. Windham, 13 Maine, 225; Johnston v. Turner, 29 Arkansas, 280; Mason v. Homer, 105 Massachusetts, 116; Kashaw v. Kashaw, 3 California, 312; Ditson v. Ditson, 4 Rhode Island, 87; Bank v. Balcom, 35 Connecticut, 351; Hunt v. Hunt, 72 New York, 217; 28 Am. Rep. 129; Baldwin v. Flagg, 43 New Jersey Law, 495; Bishop v. Bishop, 30 Pennsyl vania State, 412; Ensor v. Graff, 43 Maryland, 291; Colburn v. Holland, 14 Richardson Eq. (So. Car.), 176; Harkins v. Arnold, 46 Georgia, 656; Hanberry v. Hanberry, 29 Alabama, 719; Jenness v. Jenness, 24 Indiana, 355; 87 Am. Dec. 335; Babbitt v. Babbitt, 69 Illinois, 277; Beard v. Knox, 5 California, 252; 63 Am. Dec. 125; Swaney v. Hutchins, 13 Nebraska, 266; Johnson v. Johnson, 12 Bush (Kentucky), 485; Williams v. Saunders, 5 Coldwell (Tennessee), 60; Russell v. Randolph, 11 Texas, 460; so "universally held in all civilized countries," Jacobs on Domicil, p. 291. Even though she does not accompany him. Burlen v. Shannon, 115 Massachusetts, 438; 96 Am. Dec. 733; Loker v. Gerald, 157 Massachusetts, 42; 34 Am. St. Rep. 252; 16 Lawyer's Rep. Annotated, 497; Johnston v. Turner, supra; Russeli v. Randolph, supra; Hair

ston v. Hairston, 27 Mississippi, 704; 61 Am. Dec. 530. And she cannot change it, even with the consent of her husband. Cases supra; Cox v. Cox, 19 Ohio State, 502; 2 Am. Rep. 415; Maguire v. Maguire, 7 Dana (Kentucky), 181; Davis v. Davis, 30 Illinois, 180.

A divorced wife may acquire a domicil for herself. Bennett v. Bennett, Deady (U. S. Circ. Ct.), 299. Even though only a mensa et thoro. Barber v. Barber, 21 Howard (U. S. Sup. Ct.), 582 (TANEY, C. J., and two others dissenting); Hunt v. Hunt, supra; Vischer v. Vischer, 12 Barbour (New York Supr. Ct.), 640; Williamsport v. Eldred, 84 Pennsylvania State, 429.

A wife entitled to a divorce is not bound to sue for it at the former joint domicil but may follow the husband to his new domicil. Greene v. Greene, 11 Pickering (Mass.), 410; Masten v. Masten, 15 New Hampshire, 159; Harrison v. Harrison, 20 Alabama, 629; 56 Am. Dec. 227; Smith v. Morehead, 6 Jones Equity (North Car.), 360; Davis v. Davis, 30 Illinois, 180; Kashaw v. Kashaw, 3 California, 312. But contra: Hopkins v. Hopkins, 35 New Hamp shire, 474; Schonwald v. Schonwald, 2 Jones Equity (North Car.), 367; Jenness v. Jenness, 24 Indiana, 355; 87 Am. Dec. 335; Dutcher v. Dutcher, 39 Wisconsin, 651; Kruse v. Kruse, 25 Missouri, 68.

But she is not bound to pursue the husband; she may sue at the old domi cil. Hopkins v. Hopkins, supra; Shaw v. Shaw, 98 Massachusetts, 158; Dorsey v. Dorsey, 7 Watts (Penn.), 349; 32 Am. Dec. 767; Hull v. Hull, 2 Strobhart Equity (So. Car.), 174; Hanberry v. Hanberry, 29 Alabama, 719; Burtis v. Burtis, 161 Massachusetts, 508.

The weight of authority here is that a wife entitled to a divorce may leave the joint domicil and acquire a new domicil for herself, even in another State. Cheever v. Wilson, 9 Wallace (U. S. Supr. Ct.), 108; Harding v. Alden, 9 Greenleaf (Maine), 140; 23 Am. Dec. 549; Frary v. Frary, 10 New Hamp shire, 61; 32 Am. Dec. 395; Ditson v. Ditson, 4 Rhode Island, 87; Sawtell v. Sawtell, 17 Connecticut, 284; Kinnier v. Kinnier, 45 New York, 535; 6 Am. Rep. 132; State v. Schlachter, Phillips Law (Nor. Car.), 520; Tolen v. Tolen, 2 Blackford (Indiana), 407; 21 Am. Dec. 743; Wright v. Wright, 24 Michigan, 180; Craven v. Craven, 27 Wisconsin, 418; Fishli v. Fishli, 2 Littell (Kentucky), 337; Shreck v. Shreck, 32 Texas, 578; 5 Am. Rep. 251; Moffatt v. Moffatt, 5 California, 280; White v. White, 18 Rhode Island, 292.

Mr. Jacobs pronounces this doctrine " dangerous, and capable of misapplication and disastrous results." Domicil, p. 315. Some Courts have denied it. Dorsey v. Dorsey, 7 Watts (Penn.), 349; 32 Am. Dec. 767; Prosser v. Warner, 47 Vermont, 667; 19 Am. Rep. 132; Maguire v. Maguire, 7 Dana (Kentucky), 181; and see Bradshaw v. Heath, 13 Wendell (New York), 407; Borden v. Fitch, 15 Johnson (New York), 121; 8 Am. Dec. 225. Judge REDFIELD opposes it. 3 Am. Law Rev. (N. S.), 193, 222. See Harrison v. Harrison, 20 Alabama, 629; 56 Am. Dec. 227.

The doctrine certainly does not extend to any other cause of action than divorce. Prater v. Prater, 87 Tennessee, 78; 10 Am. St. Rep. 623 (homestead right).

The doctrine is said, on the one hand, to be necessary for the protection of the wife, but it is difficult to see why, because she can take advantage of

all the causes for divorce recognized by the State of the domicil in the Courts of that State, and to take advantage of other causes is not recognized by that State as necessary for her protection. Her emigration to other States is almost always to get the benefit of other causes. For example, in New York, where adultery is the sole cause, a wife may have no ground for divorce, but still may be condemned to live with a drunken, cruel, or felonious husband, from whom in Illinois she could be freed. She therefore goes to Illinois for relief. Whether this is "dangerous" and "disastrous is mere matter of opinion. The New York people think it is; the Illinois people think differently. At all Courts, the amount of this emigratory divorce is greatly overestimated in popular belief. Statistics show that it does not amount to one fifth of the whole number; some put it at one tenth. Mr. Bishop is a stout adherent to the more liberal rule, and it has the weighty approval of the Federal Supreme Court.

A PERSON can have but one domicil properly so-called, e. g., for the purpose of succession to personalty. It is either the domicil of origin or a domicil of choice.

Domicil of origin is fixed by the domicil of the parent at the time of birth. It is that of the father if the child is legitimate; if illegitimate, that of the mother.

The domicil of origin prevails until the person has manifested and carried into effect an intention of acquiring a settled home elsewhere. That is called his domicil of choice.

When a person, having acquired a domicil of choice in a new country, abandons that country as the country of his home, and has not acquired animo et facto a settled home in another country, he is deemed by law to have reverted to and become domiciled in the country of his domicil of origin.

No. 3. -Somerville v. Somerville, 5 Ves. 750, 751.

The domicil of origin again continues until a new domicil of choice is acquired.

Somerville v. Lord Somerville; Bayntun v. Lord Somerville.

5 Ves. 750-792 (5 R. R. 155).

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Domicil. ·Domicil of Origin. ·

Domicil of Choice. — Fact and Intention.

[750]

The succession to the personal estate of an intestate is regulated by the law of that place which was his domicil at the time of his death. For that purpose there can be but one domicil; and the Lex loci rei sitæ does not prevail.

The mere place of birth or death does not constitute the domicil. The domicil of origin, which arises from birth and connections, remains, until clearly abandoned and another taken.

In the case of Lord Somerville, of two acknowledged domicils, the family seat in Scotland, and a leasehold house in London, the former, which was the original domicil, held, in the circumstances, to prevail.

The question in these causes was, whether the distribution of the personal estate of the late Lord Somerville, who died intestate, seised of real estates in Scotland and in Gloucestershire, and pos sessed of personal property in the English funds to a very large amount, should be made according to the law of Scotland or the law of England. The claimants by the law of Scotland were his Lordship's nephews and nieces of the whole blood, exclusive of Lord Somerville, as being the heir-at-law entitled to the real estates. They were the children of the intestate's deceased brother and sister of the whole blood, Colonel Somerville and Ann Whichmore Burgess. Sir Edward Bayntun, half-brother to the intestate, being the surviving son of Lady Somerville by a former marriage, and two nephews and two nieces, of the half-blood, being the children of a deceased brother and sister of the intestate by a former marriage, claimed to participate in the distribution under the law of England. Lord Somerville obtained letters of adminis tration.

The following circumstances were established by the evidence. That branch of the Somerville family, from which the late Lord

was directly descended, had been wholly settled in Scotland [* 751] above * six centuries. His father, James, Lord Somerville, first came to England in 1721 at the age of twenty-three, for the purpose of prosecuting his claim to the Barony of Somer