58 Me. 207 | Me. | 1870
The instruction excepted to and relied upon is as follows: “ If he left without any intention as to whether he would or would not return, or with only an indefinite and half-formed purpose not to return, but did, in fact, return without having established a residence elsewhere, his absence would not constitute an interruption of his residence in West Gardiner.”
This instruction assumes the fact that the pauper had established a residence in West Gardiner, and that ho had left there without an intention to return. The proposition, then, is, that if under this
Two propositions are involved. First, if a person leaves his place of residence, taking with him all he has, leaving behind nothing to indicate that he has any home or residence there, at the same time has no intention as to whether he will or will not return; is this, of itself, such an abandonment as under the pauper laws to interrupt his residence in that place ? Second, does the question of interruption depend, in any degree, upon the fact whether he did or did not return without having established a residence elsewhere ?
■ In answering the first question, we are led to ask another, what is necessary to continue a residence once established ? and this, to some extent, involves the nature or definition of a residence. In our pauper law, “residence,” “home,” and “dwelling-place,” have been used as synonymous terms. In the statutes of 1821 and 1841, the word residence is used; in the revision of 1857 home is substituted. In the decisions the several words are used indifferently and are held to mean the same thing. Warren v. Thomaston, 43 Maine, 418.
In the same case, as in numerous others, it is held that to establish a “ residence ” within the meaning of the statute, tlxex’e must be “personal presence without any presexxt ixxtexxtioxx to depart.” In Turner v. Buckfield, 3 Maine, 229, it is said that the expressioxx, “ dwells and has his home,” meaxxs a residence with axx ixxtentioxx to remain, or at least “ without axx intentioxx of removal.” In Augusta v. Turner, 24 Maine, 112; Gardiner v. Farmingdale, 45 Maine, 537; and Corinth v. Bradley, 51 Maine, 540, it is held that persons non compos mentis may reside in a town, withixx the meaxxing of the statute, so as to acquire a legal settlement thereixx. From these cases it would seem to be well settled that a “ residence ” may be
Another principle, which may be considered as well settled in this State, is that a residence once established may be abandoned or lost, without having acquired another. Exeter v. Brighton, 15 Maine, 58; Jefferson v. Washington, 19 Maine, 293.
In regard to “ domicile,” a word not used in the pauper law, it is different. This cannnot be lost without gaining another. Every person owes some duties to society, has some obligations to perform to the government under which he lives, and from which he receives protection. These duties and obligations are not to bo laid aside at will, but rest upon and attach to the person from the earliest to the latest moment of his life. Ilis domicile is the place where those duties are defined and are to be performed. It is imposed upon him, by the law, at liis birth; and though, when arriving at legal age, he may choose the place where it shall be, it is not at his option whether he will be without any. With regard to a “residence”1 or “home” it is entirely different. This is a matter of privilegeji exclusively. It imposes no public burdens, but is private in its ‘ nature, relates to personal matters alone, and is the place about which, to a greater or less extent, cluster those things which supply personal needs, or gratify his affections. Hence it is purely and wholly a matter of choice, not only as to the place where it shall be, but also whether there shall be any. If, then, a residence once established may cease to continue, under wliat circumstances are we to consider it at an end, or when is it abandoned? Not what amount or kind of testimony may be required to furnish satisfaction of its abandonment, but when, as a matter of law, does it cease to exist. It seems plain that when all the elements which constitute a home have ceased, that the home itself would cease also. If “ residence ” is made up of actual presence and intention, or presence without intention, where these are wanting, we shall look in vain for the residence. If the parts are all gone, it would seem, necessarily,
It is believed, too, that the authorities, when correctly understood, are in harmony with these views. There is, in some of them, an apparent conflict with the principles here laid down. Nor do they all seem to be consistent with each other. As in Warren v. Thomaston, before cited, it is said, “ And to break up such residence, when once established, there must be a departure with intention to
In Warren v. Thomaston, relied upon by plaintiffs, on page 419, it is said, “ The fact of abandonment, or not, depended upon the intention of the pauper when he departed.” Thus assuming that the intention did exist, making no suggestion, even, as to the effect of a want of intention. The same may be said of Mead v. Boxborough, 11 Cush. 362, and Carnoe v. Freetown, 9 Gray, 357. Worcester v. Wilbraham, 13 Gray, 586, is decided upon the ground that the pauper could not lose one residence till he had established another, and so is not applicable. Bangor v. Brewer, 47 Maine, 97, so far as it has any bearing, is against the plaintiffs. On page 101, the opinion reads thus, “ No question is now better settled, than
This brings us to the second proposition involved, Does the question of interruption depend, in any degree, upon the fact whether he did or did not return ? The instruction is, that if under the facts stated, “ he did, in fact, return without having established a residence elsewhere, his absence would not constitute an interruption of his residence in West Gardiner.” The inference is, that if he did not return, his residence would be interrupted, or, that in order to break up his residence he must have established one elsewhere. If he had established a home elsewhere it would have been an interruption to his residence in West Gardiner, for under our law he could not have two at the same time. But, as we have already seen, the continuance of his home in West Gardiner could in no way depend upon his having established another, for he may have been without any. It is evident, also, that the continuance of the pauper’s home depended, in no degree, upon his return. When he left, his residence ended, or it did not. If it ended, his return would not relate back so as to renew it from the time he left; in other words, restore that which had already ceased to exist. It might, indeed, establish a new home, but could not revive the old one. If such were the case, it might very pertinently be asked,
It is true the question may be settled by other circumstances proved, but we are considering the state of facts contemplated by the instruction, and trying it by that test. The difficulty seems to be that the instruction lays down, as a conclusion of law, that which should have been left to the jury as a question of fact. This distinction has been overlooked in several of the reported cases, as in Corinth v. Bradley, 51 Maine, 540. The return of the pauper is made a necessary element in the continuance of his residence, when, in fact, it is only a matter of evidence for the jury to weigh, more or less cogent, as the absence may be of longer or shorter duration, or according to the circumstances attending it. Intention must always be proved by acts or the declaration of the party or both. If a person leaves his place of residence, with all he has, the jury are to draw the inference as to his object or purpose in doing so. If from weakness, or other cause, he has no intention or purpose in view, still it is for the jury to say, from the circumstances, whether he still retains a residence in the place left, and if a return or want of one is proved, this is to he considered as a question of fact, having such weight as it may be entitled to.
Exceptions sustained.
New trial granted.