Statement of the case.

appellant always stated to him that his return to Tennessee would be an experiment; that he thought there would be a good opening to make money there for a year or two after the close of the war, and while the military occupied the country; and that, if society should become settled so that the life and property of a northern man would be safe there, he might purchase property and make it his home; that it was arranged between witness and appellant that appellant should go south and try the experiment of living there, and if he should become satisfied, after remaining there a reasonable time, that a northern man could live there unmolested and in peace, he was instructed to purchase property for witness, in or near Clarksville, Tennessee, with a view to witness' removal to that place; that appellant had not been gone more than a month before he informed witness by letter that he was satisfied that he could not live in safety in Tennessee, and that he intended to return to Illinois as soon as he could close up his business; that appellant did return to Galesburg, Illinois, where he had resided before the war and has resided ever since; that appellant returned about the middle of March, A. D. 1866. Appellant then proved by Elias Benner, a citizen of Knox county, Illinois, that he had known appellant in said county for the last twelve years; that appellant entered the military service of the United States in the month of August, 1862, and was absent from Illinois, in said service, nearly three years, returning to his home in said county in July, 1865; that appellant was stationed a part of the time, during the military service aforesaid, at Clarksville, Tennessee, and while there stationed had his family with hin, and that his family returned to Illinois with him, when he was mustered out of service in July, 1865.

That soon after appellant's return he told witness, that his business relations had been broken up by his absence in the army, and that, as there was a prospect that business would be very dull in the north for some time after the close of the war, he had decided to go back to Tennessee, where he had been in command, and engage in the claim and law business for a time, and if he found it safe for him to live there, he

Statement of the case.

might buy property and make it his home; but if he found it otherwise, he should return to Illinois.

That in the month of August, 1865, appellant did go with his family to Clarksville, Tennessee; that previous to his departure, appellant sold a part of his household goods and left the remainder in witness' possession for safe keeping; that appellant rented his dwelling-house, and authorized witness to collect the rent; that witness acted as agent of appellant, both while he was in the army and during his second absence in Tennessee, appellant being the son-in-law of witness.

That appellant had not been absent, as aforesaid, more than a month, when he wrote witness, that he had tried the experiment of living south, and found, that he could not safely make it his home on account of the unsettled state of society and the hostility of the citizens against him, and that he had determined to return to Illinois as soon as he could close up his business and as soon as the river was navigable, it being then so low that boats could not run; that appellant did return to Galesburg, Knox county, Illinois, with his family, in the month of March, A. D. 1866, where he has since resided and now resides.

Appellant next proved, by Wm. A. Peffer, of Clarksville, Tennessee, that he was the partner and particular friend of appellant in the latter part of A. D. 1865, and the first part of A. D. 1866, at Clarksville, Tennessee.

That he frequently conversed with appellant, prior to the partnership, about his coming to Tennessee. Appellant was not then satisfied of the propriety of the move, and expressed doubt of his ability to make a permanent residence profitable.

When he did come, in 1865, appellant told witness, that his removal was merely "an experiment; "that he could not decide to remain permanently until he was satisfied it would be best; that he had left Illinois with that view, and his stay in Tennessee would depend entirely on his getting along well with the people.

A short time after appellant's arrival in Tennessee, developments were made which caused witness to remark to him, that

Statement of the case.

he would not remain long. His reply was, in substance, "I will try a little longer."

Early in October, 1865, appellant, in a confidential conversation, told witness that he had made up his mind to go back to Illinois, and he regretted that he had sold his property there, instead of renting it. Henceforward it was understood, that appellant was to return, and he proposed to sell witness his interest in their business. Witness would not purchase, and appellant decided to wait a month or two and see if they would realize something from their business with the government. Appellant often said, that whenever he was sure the river was open, or would remain open long enough, he would leave instanter.

Witness believes, that appellant had not been in Clarksville more than two months before he was satisfied with his experiment of living in Tennessee, and had fully determined to return to Illinois.

Appellant had frequent application to purchase property, but refused, for the reason that he did not intend to remain. He did not tell the people his reasons, but did tell witness.

An election was held while appellant was in Tennessee. Witness asked him to vote for his favorite candidate. Appellant told witness that he did not want to do any act that would in any way deprive him of his citizenship in Illinois for he had never relinquished it. Appellant would have left Tennessee as early as November, 1865, if witness would have purchased his interest in their business. In October, 1865, appellant told witness, that as he did not intend to remain, he would withdraw from the partnership if witness desired it. Witness is confident that appellant never had a fixed determination to make Tennessee his home; that his removal was an experiment, and that it required only about two months to test it.

Appellant then offered to read in evidence his own affidavit, to which the State's attorney objected, on the ground that this was a criminal proceeding, but the court permitted the affidavit of appellant to be read, but did not consider the same in making up his judgment, to which appellant excepted.

Brief for the Appellant.

The people proved: First, by M. M. Clark, that appellant was a resident of Galesburg, Knox county, Illinois, about the last of August, A. D. 1865, and had been a resident of that place for more than ten years prior to that date. That about the date mentioned he removed with his family to the State of Tennessee, and returned with his family to Galesburg about the middle of March, A. D. 1866, where he has since resided. That while appellant was preparing to remove to Tennessee, he told witness that he would not sell his Illinois Reports, giving as a reason that he might return in a short time.

Appellant told witness that he was going to Clarksville, Tennessee, to open an office; that he did not know whether he would remain there or not. It depended on circumstances. It was an experiment and might fail. Second, by James A. McKenzie, that he had known appellant as a resident of Knox county, Illinois, for nine years previous to August, A. D. 1865. That, about the date named, appellant removed from the city of Galesburg, where he had before that time resided. Appellant informed witness that it was his intention to go to Clarksville, Tennessee.

Witness afterward received letters from appellant dated at that place. Appellant told witness that he was going to Clarksville, to open a law office; that he thought he could do better there than in Galesburg.

The court gave judgment pro forma against the defendant, who appealed therefrom.

Messrs. T. G. FROST and E. P. WILLIAMS, for the appellant.

Did appellant lose his residence by going to Tennessee the last of August, 1865, and returning to Illinois in the middle of March, 1866 ?

This is a question of intention, from all the facts and circum stances in each case. Kitchell v. Burgwin et ux., 21 Ill. 44; Ives v. Mills, 37 id. 75; Walters v. The People, 21 id. 178; Walters v. The People, 31 id. 174. A person may have his domicile in one place and his residence in another. Butler v. City of New York, 5 Sandf. 44.

Brief for the Appellant.

A domicile once acquired is presumed to continue until a new one is obtained facto et animo. Glover v. Glover, 18 Ala. 365.

Unless one's change of domicile is complete and final, it does not constitute an abandonment of one's country. Hardy v. De Leon, 5 Texas, 211; Brown v. Smith, 11 Eng. Law and Eq. 6; Leach v. Pillsbury, 15 N. H. 137.

When a domicile has been once obtained, it will not be lost by a temporary absence, with the intention to return. The State v. Judge, 13 Ala. 805.

Every person has a domicile of origin, which he retains until he acquires another, and the one thus acquired is in like manner retained. Thorndike v. The City of Boston, 1 Metc. 242; Kilburn v. Bennett, 3 id. 199.

If a person goes out of the State, county or town, for a particular purpose, and does not take up a permanent residence elsewhere, he cannot be considered as having removed from the State, county or town, so as to affect his domicile and inhabitancy. Sears v. City of Boston, 1 Metc. 250; Sacket's case, 1 Mass. 58; Abington v. Boston, 4 id. 312, 556; 7 id. 1; 11 id. 350, 424; 5 Pick. 370.

A man's domicile is not changed by an absence for a temporary purpose, with or without his family. Cadwalader v. Howell, 3 Harr. 138.

There must be intention and act united to effect a change of domicile. Sumerville v. Sumerville, 5 Vesey, 750.

A person's home or domicile is his habitation, fixed in any place, without any present intention of removing therefrom. Putnam v. Johnson, 10 Mass. 488.

A domicile, once fixed, will continue, notwithstanding the absence of the party, until a new domicile is acquired. Jennison v. Hapgood, 10 Pick. 77.

The domicile is not affected by the formation of an intention to remove, unless such intention is carried into effect. Hallowell v. Saco, 5 Greenl. 143.

A domicile may be defined "a residence at a particular place, accompanied with positive or presumptive proof of continuing