the infant is normally where the home of the father is, and domicile is closely synonymous with a home.18 Furthermore, the father is under a duty to care for, and see to the education and development of, the child, and it is fair that the father should be able to take his children where he can best take care of and control them.19 The domicile of the infant is that of the father, even though the infant may be away from that place of domicile,20 may be en route to it," or may never have been at that place.22 That is, given the situation where the father is legally responsible for the

High, 2 Douglas (Mich.) 515; Boyle v. Griffin, 84 Miss. 41, 36 So. 141; Lacy v. Williams, 27 Mo. 280; Smith v. Young, 136 Mo. A. 65, 117 S. W. 628; DeJarnett v. Harper, 45 Mo. A. 415; Lewis v. Castello, 17 Mo. 593; Wirsig v. Scott, 79 Neb. 322, 112 N. W. 655; White v. White, 86 A. 353; Hart v. Lindsey, 17 N. H. 235; In re Russell, 64 N. J. Eq. 313, 53 A. 169; Hervey v. Hervey, 56 N. J. Eq. 156; Blumenthal v. Tannenholz, 31 N. J. Eq. 194; In re Hubbard, 82 N. Y. 90; Kennedy v. Ryall, 67 N. Y. 379; Ludlam v. Ludlam, 26 N. Y. 356; Crawford v. Wilson, 4 Barb. 504; Matter of Rice, 7 Daly (N. Y.) 22; Eaves Costume Co. v. Pratt, 22 N. Y. S. 74; Van Hoffman v. Ward, 4 Redf. Surr. (N. Y.) 244; Exp. Bartlett, 4 Brad, Surr. (N. Y.) 221; Brown v. Lynch, 2 Brad. Surr. (N. Y.) 214; Ex p. Means, 97 S. E. 39; West Chester v. James, 2 Watts & S: (Pa.) 568; Yerkes v. Stetson, 13 Pa. Dist. 696; Mintger's Estate, 2 Pa. Dist. 584; Com. v. Thatcher, 38 Pa. Co. 137; Cannon's Estate, 15 Pa. Co. 312; Foly's Estate, 11 Phila. 47; Farris v. Sipes, 99 Tenn. 298, 41 S. W. 443; Lanning v. Gregory, 100 Tex. 310, 315, 99 S. W. 542; Wheeler v. Hollis, 19 Tex. 522; 33 Tex. 512; Rusell v. Randolph, 11 Texas 460; Udny v. Udny, L. R. 1 H. L. Sc. 441; Sharpe v. Crispin, L. R. 1 P. 611; D'Etchegoyen v. D'Etchegoyen, 13 P. D. 132; Firebrace v. Firebrace, 4 P. D. 63; In re Beaumont (1893), 3 Ch. 490; In re Macreight, 30 Ch. D. 165; In re Goodman, 17 Ch. D. 266; Goulder v. Goulder (1892), P. 240; Walcott V. Bottfield, Kay 534; Potinger V. Wightman, 3 Meriv. 67; In re Duleep Siggh, 7 Morr. Bank. Cas. 228; Somerville v. Somerville, 5 Ves. Jr. 750; 31 Reprint 839.

(18) Jefferson v. Washington, 19 Me. 293, 300; Dean v. Cannon, 37 W. Va. 123, 127, 16 S. E. 444; Burrill v. Jewett, 25 N. Y. Super. 701.

(19) 9 Central L. Journal 4, 8, 11.

(20) Lewis v. Castelo, 17 Mo. A. 593; Nunn v. Robertson, 80 Ark. 350, 97 S. W. 293; In re Willett, 24 N. Y. S. 506; Kelley v. Garrett, 67 Ala. 304; Ex p. McCoun, 96 Kan. 314; Matter of Rice, 7 Daly (N. Y.) 22; Shirley v. Burch, 6 Ky. Law (Abstract) 445; Douglas v. Douglas, 12 Eq. 617; 10 E. R. C. 355; Wheeler v. Burrow, 18 Ind. 14; Stephens Succ., 19 La. Ann. 499; Yerkes v. Stetson, 13 Pa. Dist. 696.

care and nurture of the infant, and where this responsibility is fulfilled, the legal home of the infant is the same as the legal home of the father. Thus far the law is clear. But the law is not so clear, nor are the reasons for it quite adequately given by the decided cases, in situations where the father fails to fulfill his obligations, or the law releases him from them for valid reasons. The three usual situations of this character are (a) Where the father abandons the child; (b) where the father emancipates the infant; (c) where the infant marries.

(a) When a father abandons his child the domicile of the child no longer follows the domicile of the father.23 This is obviously good sense. As the Court well said in People v. Dewey :24 "By the abandonment of the child and his neglect to support it the relator (father) relinquished his paternal right and thereupon the guardianship of the child devolved upon the mother." That is, the reason for giving the control of the domicile of the infant to the father of the infant being in fact gone, for the father does not carry out his duty of parental care, the rule also goes.

(b) Where the father emancipates the infant the weight of authority is that the infant can acquire a domicile of his own.25 A long line of decisions beginning with the case of Charlestown v. Boston, decided in 1816, and ending with the case of Bjornquist v. Boston and Albany R. R., decided in 1918, establishes this rule. And there would be no question about it were it not for two recent decisions—one in the state of Texas26 and the other in the Federal Court

(23) In re Vance, 92 Cal. 195, 28 P. 229; People v. Dewey, 50 N. Y. S. 1013; In re Rogers, 11 Oh. S. & C. P. 806.

(24) People v. Dewey, 50 N. Y. S. 1013. (25) Charlestown v. Boston, 13 Mass. 469; Washington v. Beaver, 3 Watts & S. (Pa.) 548; Eisbon v. Lyman, 49 N. H. 553; N. Yarmouth v. Portland, 73 Me. 108; Russell v. State, 6 Neb. 512, 87 N. W. 344; Carthage v. Canton, 97 Me. 473, 54 A. 1104; Oglesby v. Turner, 127 La. 1093, 54 So. 400; Bjornquist v. B. & A R. R., 50 Fed. 929. (26) Gulf C. & S. & F. & Ry. v. Lemons, 206 S. W. (Tex.) 75.

for the District of Eastern N. Y.,27 which decided the matter the other way. It is submitted, with due deference, that these two last cases are wrongly decided. For, when the law releases a parent from his obligations toward a son, as his son, the powers which flow from the imposition of those obligations should also be cut off. The parent is under no duty to control the activities of the emancipated minor; the domicile of the minor is fixed for the purpose of maintaining such control; hence, there is no good reason why the domicile should be fixed by a person who cannot legally control the activities of the person whose domicile is in question. The purpose of the rule cannot be carried out; the rule, therefore, should not remain.

(c) The authorities are not agreed on the rule governing the domicile of a married minor. Dicey says: "It has been suggested that a man, though a minor, may possibly acquire a domicile for himself by marriage, or by setting up an independent household. The reason for this suggested exception to the general rule is that a married minor must be treated as sui juris in respect of domicile, since on his marriage he actually founds an establishment separate from the parental home. This reason must, if valid, extend to all cases in which a minor in fact acquires an independent domicile, and is not satisfactory. It involves some confusion between domicile and residence, and derives no support from the view taken by English law as to an infant's liability on his contracts, which is in no way affected by his marriage. The reasoning, therefore, by which the suggested exception is supported may be held unsound, and the existence of the exception itself is deemed open to the gravest doubt."29

(27) D. L. & W. R. R. v. Petrowsky, 250 Fed. 554.

(28) Conflict of Laws, Page 128. Rule 10 (2). Mr. Dicey refers to Savigny, Guthries Tr. 2nd M Ed., S. 553, p. 100. Stephens v. MacFarland, 8 Ir. Rep. 444.

(29) Dicey, Ibid., page 129.

Westlake says: "If it is asked whether the condition of full age is necessary in the case of those who have been emancipated by marriage, the answer must be that this must depend on the personal law. A minor who on marriage is relieved by the law of his country from all incapacity will, of course, be capable for the purpose of changing his domicile as for any other purpose. Marriage does not by the law of England relieve a minor from all incapacity or therefore give him the power of changing his domicile."30

Jacobs follows Dicey and adds: “Certainly, unless we are prepared to hold that the place where a married man resides with his family is universally and necessarily the place of his domicile, there seems to be no good reason for attributing to a married minor the capacity to select for himself a domicile which is denied to an unmarried minor."31

Phillimore puts it thus: "It can scarcely be doubted that in Great Britain a minor once married with or without the proper consent, would be held capable of choosing his domicile."32 Wharton says that the authorities are not clear, 32a and Story does not mention the case at all. Perhaps, a consideration of the matter based upon the principles involved will help to clear up the difficulties.

fant who married this was always so, and the rule went on the ground that on marriage the domicile of the husband was the domicile of the wife, and as every person can have but one domicile, the infant's domicile was necessarily detached from the domicile of the father and attached to the domicile of the husband. The more recent cases give a married woman a domicile of her own for practically all purposes,35 and it would follow that marriage simply detaches the domicile of the female infant from that of her father and leaves her free to get and have a domicile of her own. We shall consider this more in detail when we discuss, later, the effect of a widow's second marriage upon the domicile of her infant son by a first marriage.

Aside from the logical result which follows from the emancipation of a male infant by marriage, a male minor should have the power to change his domicile, when he marries, because if such power is denied him you get some very odd results when the minor has a child born to him before he attains his majority. Take this case as an example.

A, a minor male, aged 18, marries, with the consent of his father. A year later his wife gives birth to a child. Eighteen months later his wife gives birth to another child. This represents the average modern family. This then is the situation as to domicile. A fixes the domicile of his wife and also of his minor children. That is, A has no capacity to fix his own legal home, but he can fix the legal home of others; he cannot be considered as having mind enough to determine where the law is to look for him, but he has mind enough to say where the law should look for others; he is too immature to be given powers of self-control, but he is mature enough to be given the control of others; he cannot by his acts and intentions fix his own duties, liabilities and powers, but he can by these same acts fix the rights, duties and powers

(35) 91 Central L. Journal 4, 24.

of others. And, if we assume that his wife had attained her majority before marriage, A is unable to fix his own domicile, that of an infant, but he can, qua infant, fix the domicile of an adult.

Now look at the same case from another angle. F, the father of A, fixes the domicile of A. A fixes the domicile of W, his wife, and C, his children. When, therefore, F changes the domicile of A, he also, for all practical purposes, changes the domi cile of W and C. That is, the domicile of a married woman can be changed by her father-in-law while she is still under coverture and living with her husband, and the domicile of an infant can be changed by its grandfather while the infant is living with its father and mother, who still have legal custody and control of the child. There isn't a case which turns the married infant into such an automaton as that. It isn't sensible to assume that the law would be so foolish as all that. When a supposed principle of law leads to such absurd results, then it is safe to declare that the principle is not as it is supposed to be.

Five decided cases bearing on this matte are all that the writer has been able to find. The earliest is Scrimshire v. Scrimshire," decided in 1752. This was a suit for the restitution of conjugal rights. H, aged 18, married W, aged 15, in France. The marriage was clandestinely performed. By the law of France a marriage between minors without the consent of their respective parents is null and void. Differences arose between H and W, and H went to England. W sues H, her husband, in England, asking for restitution of conjugal rights. H sets up as a defense that he was a minor when the marriage took place. It was held, that as the marriage was void at the place where it was performed, there was no marriage, and so the action could not be maintained in England. The Court said, semble, "A minor son is domiciled where his father lived until the son comes

of age or settles in another kingdom." (Italics mine.)

Trammel v. Trammels7 was decided in Texas in 1857. F, a widower, dicú domiciled in Arkansas, leaving a minor son, S, to whom he willed all his property. S married at the age of 18 or 20, and went to Texas with his wife to live there. A question arose as to the proper sale of some of his property by the executor of his father's estate, and suit was brought. concerning it in Texas. It was held that the marriage of S did not emancipate him. Wheeler, J., said: "It will be diflìcult, I apprehend, to maintain either upon principle or authority, that it (the marriage of a minor male) does have the effect to remove their civil disabilities; or that the minor in the case became thereby a person capable sui juris of changing his national domicile." (Page 417.)

The next case is an English one, decided in 1888. P was born in France of French parents. When he was 10 years old his parents came to England and were naturalized and took their domicile there. At the age of 18, P went to Canada and married there. Later he returned to England. Leaving his wife in England, P travels and then returns to England. He then sues his wife in England for divorce, alleging adultery. The wife pleads to the jurisdiction of the court on the ground that P was domiciled in Canada. It was held that as P had gone to Canada only temporarily he was domiciled in England. The question as to a married minor being able to acquire a separate domicile from that of his father was not decided as the case went off on the point mentioned above.38

Goulder v. Goulder39 was decided in 1892. X, a son of parents domiciled in England, was born in France and lived with his parents there. While under age he married in France. When he attained

majority, X went through the formalities required by French law to indicate that he was a British subject and did not intend to make his home permanently in France. Shortly after this X went to Australia, where he committed adultery. His wife sues for divorce in England. It was held that the English court had jurisdiction, for the wife took her domicile from her husband, and as he had a domicile of origin in England which he had never changed by acquiring another domicile, the parties were both domiciled in England. The question as to the effect of the marriage upon the domicile of the minor was not discussed or decided.

40

In Hess v. Kimble, a case involving the annulment of a marriage between minors, the court went off on a point respecting the bona fide residence of the minor and did not decide the question of the domicile of a married minor. The facts were as follows: H, a male minor, and K, a female minor, ran off to New Jersey from their respective homes in Philadelphia, and were married. His parents refused to recognize his wife, and sent him off to New Jersey to board. In New Jersey, H petitions to have the marriage annulled. It was held that the court had no jurisdiction. The court said that the domicile of a legitimate, unemancipated minor was with his father; and that H was not a bona fide resident of New Jersey under the New Jersey Statutes. The case was decided in 1913.

So far as the cases go then, there is one case squarely deciding that a married minor cannot change his domicile nor have one of his own, and there is a dictum to the effect that he can get a domicile of his own by settling in a foreign kingdom. On principle I think that marriage does emancipate a minor and so gives the married minor the power to acquire a domicile of his own.

Washington, D. C.

ALBERT LEVITT.

(40) 79 H. J. Eq. 454, 81 A. 363.

STONE, J. Defendant in error brought an action in tort against plaintiffs in error, the Chicago City Railway Company and the Chicago Railways Company, in the circuit court of Cook county, to recover damages for injuries alleged to have been received on June 25, 1916, by reason of a fall which she received while attempting to board a street car at the intersection of Paulina and West Madison street, in the city of Chicago. The declaration consists of two counts. The first count, after alleging the ownership and operation of the street car, alleges that while the street car had stopped at the intersection of said streets for the reception of passengers, and while plaintiff was endeavoring to board the car as a passenger, using ordinary care for her own safety, the defendants, by their employees, negligently caused the street car to be suddenly and violently started, and thereby she was thrown to the street and injured. The second count is similar to the first, except that it charges that while the car was stopped and the plaintiff was in the act of boarding the car, using ordinary care for her own safety, the defendants failed to afford her a reasonable opportunity, and by reason of their negligence in the operation of the car the plaintiff was thrown to the street and injured. The plaintiffs in error filed a plea of general issue. The case was tried before a jury, which returned a verdict for the plaintiff for $2,000. An appeal was prayed to the Appellate Court, where the judgment was affirmed, and the cause comes here on writ of certiorari.

Plaintiffs in error assign as error the giving and refusal of certain instructions by the trial court. They contend that there was a sharp conflict in the evidence and that it was important and necessary that the instructions to the jury be free from error.

The plaintiff's evidence showed that she, a woman of about the age of 50 years, on the evening of the accident had attended church, and on her return homeward, about 10:30 p. m., she stopped at Paulina and West Madison streets for the purpose of taking a northbound street car; that when she reached the intersection she crossed first to the southwest corner, and seeing a north-bound car she proceeded to Paulina street, on which street the car was being operated, in order to board the same. In doing so she passed to the rear of the northbound car. Her evidence tends to establish that she passed around the rear of the car to the east side of the rear platform and to the center of the entrance, where she waited for five people who were in front of her to get on; that four of them boarded the car and the fifth stepped to the right and assisted her onto the step; that she took hold of the righthand bar with her right hand and placed her right foot on the step and her left foot on the platform; and that as she was in the act of pulling herself into the car it started with a jerk throwing her onto the street. There is other testimony tending to corroborate her. Defendant's theory is that the car remained standing until every one who was waiting had boarded the car; that the conductor looked out and saw that no one else was attempting to get on the step, whereupon he signalled and the car started slowly and smoothly; that the plaintiff was still coming around the rear of the car and had not gotten around to the step when the car started to move away, and she hastened and reached for the rear hand bar, and that when she got hold of it she fell.