NOTES OF RECENT CASES trine as settled by the earlier decision. It rec ommends a -change in the law by the legislature, and in refusing to overrule the earlier decisions, says: "It has become a rule of personal liberty, quite as firmly established in this state as the rule of property recently reaffirmed in the case of Peck v. Schenectady Ry. Co., 170 N. Y. 298, 63 N. E. 357. Although it may be admitted that this rule, which exists only in New York and Wisconsin, is at variance with what now appears to be the more reasonable view adopted in at least twelve of our sister states, and although it may seem to be too narrow for the practical administration of criminal justice, as applied to modern conditions, we are admonished that the remedy is not with the courts, but in the legis lature. We cannot change the existing rule without enacting, in effect, an ex post facto law. This cannot be done without ignoring the con stitutional rights of many who may legally claim the protection of the rule." This case affords another illustration of the apparent reluctance of legislatures to enact reme dial legislation where judicial decisions disclose a defect in existing law. (See 18 Green Bag, 426.) The doctrine of a " Rule of Liberty," in analogy to rules of property, as an inhibition against the correction by a court of a previous erroneous construction of a criminal statute is of doubtful policy or propriety. It would seem that a better reason for the decision of the present case was that the legislature for thirty-six years after the court had given the law this construction failed to amend it, and in that way indicated an intent in effect to legalize the swindling of one who is himself attempting to swindle. At last, and evi dently as a result of this latest decision, a bill is before the New York legislature amending the statute in this respect. F. I. The court very properly recognizes that the doc trine of the New York and Wisconsin courts, that a man may commit a crime with impunity pro vided the victim is himself endeavoring to commit a crime, is indefensible on principle. Two wrongs do not make a right; and the state is no less wronged by one party because the other is also attempting to offend it. On the question of stare decisis this decision may be questioned. If the court had decided that the defendant was punish able it would not by such decision have created a new crime ex post facto. The defendant had without question violated a criminal statute and offended the 'state; if he is not punished,, it is because of a defense interposed by public policy and entirely unmerited by him; and it would seem
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that he has no more vested right to the benefit of such a defense than to the continuance of a favorable rule of procedure or form of pleading. J. H. B. DOMICILE. (Change — Intent.) Ore. — Pickering et al. v. Winch et al., 87 Pac. Rep. 763, is a good example of the rule that residence and domicile are vastly different terms. The action itself was a contest over the construction of a will which depended on the domicile of the par ties. Decedent and his wife resided in Portland, Ore., for forty years, and there accumulated a fortune. Then, in failing health, decedent took up his abode in California, first living at a hotel and then in a private residence. He never voted in California or otherwise recognized such state as his domicile, and kept his business as formerly in Oregon. After three years' residence in such state, he died, and his wife took out letters of administration in Oregon, though continuing her residence in California. She made no change in the business affairs of her husband, and after nine years' residence in California, she died, and the present contest arose. The court, in holding that the domicile of both husband and wife was in the state of Oregon, said as to the distinction between residence and domicile: "Residence and domicile are not interchangeable terms. Domi cile embraces more than mere residence. Resi dence denotes a place of abode, whether tempo rary or permanent; while domicile denotes a fixed and permanent home, and need not be the actual place of abode. It does not depend upon mere naked residence, but is the legal, the juri dical seat, of every person, — the seat where he is considered to be in the eyes of the law, for certain applications of the law, whether he be cor poreally found there, or whether he be not found there;" citing Drevon v. Drevon, 34 L. J. (N. S.) Eq. 129; Moorhouse v. Lord, 10 H. L. C. 27a; Oilman v. Gilman, 52 Me. 165, 83 Am. Dec. 502; Tipton v. Tipton, 87 Ky. 245, 8 S. W. 440; Long v. Ryan, 30 Grat. (Va.) 718; Stout v. Leonard, 37 N. J. Law, 492. The court further held that to constitute a change of domicile, three things were essential: first, residence in another place; second, an intention to abandon the old domicile; and third, an intention of acquiring a new one, and as to such intent as a necessary ingredient to a change of domicile, said: "Every person is assumed by the law to have one domicile and one only, and when this is shown to exist, it is pre sumed to continue until not only another resi dence and place of abode are acquired, but until there is an intention manifested and carried into execution of abandoning the original domicile and acquiring another by actual residence, and
