Town of Barton v. Town of Irasburgh

33 Vt. 159 | Vt. | 1860

Aldis, J.

In determining the question of residence, intention is an important element. It is especially so where the recent removal of the party from his ordinary home and his actual commorancy elsewhere are not of that decisive character that settles the question of residence without reference to intention. So where a single person, not a householder, and with few effects, changes his residence, it is obvious that intention becomes then especially important. But intention is not the only element in such cases, and is itself modified by the character, habits and business of the party, and the character of his old home, and of his new residence. Again, the intention, the animus revertendi, must be a present, fixed and continuous intention. If the intention of returning to the former home to reside is once abandoned, the old residence is interrupted, and a subsequent revival of the intention is inoperative to restore the residence. It is not a mere feeling or sentiment, a desire, the yearning of the untravelled heath, some ultimate purpose not having a present fixed object. It must not be a remote and secret intention over which the present intention of residence at the new place dominates. Nor must the new residence have all the qualities and indicia of the old with a present intention to remain in the new place for an indefinite time, or for such a length of time as he can find occupation ; for such residence is not distinguishable from the old, and reduces the animus revertendi to mere desire and sentiment.

Again, in considering the question of intention, it is always important to consider whether the party has anything to return to.

A householder who has a family and a house to return to, a single person who has an accustomed home, or personal effects and worldly goods to go back to, may well be supposed to have the intention of returning. Hence in many cases the place where one keeps his effects, his chest, etc., is said to be his home. If he take his all with him and leaves no home behind him, then he may be thought more reasonably to carry his home with him. His places of residence have no fixed purpose and are easily moulded to any views which business, profit or pleasure may suggest. The intention where to reside may fluctuate from day to day.

In the case at bar the party, a single person, had lived and worked chiefly in Barton, but he went to Irasburgh and carried all his effects with him. He had no home anywhere, not even in Barton. He had nothing in Barton to return to. His main object in life would seem to have been to find occupation, to obtain a place where he might be allowed to work and stay, and even this poor privilege was frequently denied him. The bill of exceptions states that on account of his habits of intemperance, and his liability to fits, he found it very difficult to obtain employment or any place to live, and that he seemed to desire to stay as long as he could wherever he could find employmont, and this applied to his stay at the places where he got work in Irasburgh, Sheffield and Brighton, as well as in Barton. His residence in Barton had nothing to distinguish it or give it the character of a home any more than his residence in Irasburgh and Sheffield.

The intention or purpose to return to Barton, was not to any place in particular, nor was there any spot in Barton that even he considered home, nor was his intent a present and continuing intention, which made his absences merely temporary, and always subject to the intention of return to Barton to reside; but on the contrary, the intention to return was inferior to, and overruled by, the intention of getting work and a place to live, and so long as these could be obtained, the intention of going back to Barton was inoperative and indefinitely delayed. When while absent from Barton he could find no place to stay elsewhere, he went back to Barton. Now such intention cannot be properly called on intention of returning to reside ; it is rather, as most properly expressed in the charge of the county court, “ the entertaining of 'a purpose to return to the town to seek a home and employment there.” Even this indefinite purpose partook of his own vagrant condition, seems to have had no settled home in his mind, but to have lodged in it as travellers do at a house of entertainment.

He would intend to return to Barton when he could not stop anywhere else.

The charge of the court is fully sustained by the decisions of our own State. Thus in Hartford v. Hartland, 19 Vt. 396, the pauper with his family and effects moved - from Hartford to Lebanon, N. H , in order to learn the trade of shoemaking, staid three or four months and then moved back to Hartford. It was claimed that his removal was for a temporary purpose, and the intent to return remained. Eoyce, J., says that as he removed all his family and effects to Lebanon, though he may have contemplated a return to Hartford at some future but uncertain time, still his residence at Hartford was interrupted. In the present case the absence from Barton was from July, 1852, till the following spring ; his stay was not fop a fixed term, indicating an intent to return at its close to Barton, but was indefinite. He seemed to desire to stay away as long as lie could find employment. Royalton v. Bethel, 10 Vt. 22; Middlebury v. Waltham, 6 Vt. 200; Jamaica v. Townsend, 19 Vt. 267. In the last case the whole tenor of Judge Redeield’s opinion is to show that a mental purpose of return at a future indefinite time, when there is no particular home to return to, is not the animus revertendi that determines residence.

The same principle has been recognized in the decisions in England and in other States. In the celebrated case of Bruce v. Bruce, 2 Bos. & Pul., the remark of the chancellor refers to the distinction in striking language: “Major Bruce left England and went to India, and lived there sixteen years and died. Be meant to return to his native country, it is said, and let it be granted. He meant then to change his domicil, but died before actually changing it.”

The same principle is recognized in Ermnes v. Smith, 14 Howard 423, by the supreme court of the United States.

Without further reference to authorities, we conclude that the charge of the court was correct.

Judgment affirmed.