
    The Inhabitants of PARSONSFIELD v. PERKINS.
    
      Domicil. One may be considered as “ dwelling and having his horn'e'1'’ in a certain town, though he has ho particular house there, as the place of his fixed abode.
    This was an action upon tbe Stal. 1821. ch. 122. sec. 22, brought to recover the penalty of sixty dollars for bringing into and leaving in tbe town of Parsonsfield one Isaac Stanton a poor and indigent person, he having no legal settlement in that town, the defendant knowing him to be poor and indigent.
    At the trial in the Court below before Whitman C. it appeared that the pauper removed into Parsonsfield with a wife and children in the year 1800 or 1801; — that about twelve years ago he removed to Ossipee, where he resided a short time, and then returned to Parsonsfield. where he resided with his family most of the time until within about six years past 5 — • that for tbe last four years his wife had kept house, with her children, in Parsonsfield; except that in the year 1820 she was seven weeks in Middleton in New-Hampshire, and in the years 1819 and 1820 she was nine months in Hiram, and in 1822 was seven weeks in Brookfield /- — that about six years ago the pauper separted from his wife and family, and had not resided with them since, but yet had lived the greatest part of the time in Parsonsfield, going from house to house,, occasionally working fn that and the neighbouring towns at bis trade of bricklayer, a.nd receiving his food wherever he worked; — that he was not out o.f the town of Parsonsfield, except part of one day, from December-1820 till the last of April 1821 ; — that he had no particular place of residence within Parsonsfield, where he kept his clothes, but went from one house to another- as he chanced to find food or employment. It also appeared that the wife and some of the children had been twice removed' from Parsons-field to Middleton as paupers,, that about four years ago the'latter town had supported them as such eight months, after which they voluntarily returned to Parsonsfield. But it did not appear that Stanlon or any of his family had received supplies as paupers from any town within one year prior to the passing of the Act for the settlement and relief of the poor.
    
      Upon this evidence the Judge was of opinion, and so instructed the jury, that Stanton could not be considered as having a domicil in Parsonsfield on the twenty-first of March 1821, and therefore gained no settlement there by virtue •of the statute.,; to which opinion the defendant filed exceptions.
    Shepley, in support of the exceptions.
    ' Domicil, or home, is w the habitation in any fixed place, with “ the intention of always staying'there.” This intention may be known tacitly; or by express declarations. Valid, look 1,. ch 19. sec. 218.
    The presumption arising from his residence is, that he is there animo manendL If it sufficiently appear that the intention of removing was to make a permanent settlement, or for an in. definite time, the right of domicil is acquired by a residence of even a few days.. The Bernon, 1 Rob. 102., The Venus, 8 Cranch 279. A year’s residence is not .necessary. Putnam v, Johnson fy ' als. 10. Mass. 500. A mariner making his home in any town for more than a year, following his profession therefrom, acquired a settlement in such town. Minglon v. Boston, 4 Mass. 312. Nor does he lose his domicil by temporary absences for labour. Lincoln v, Hapgood, 11 Mass., 530. Granby v Amherst% 7 Mass. 5.,
    The husband is not only supposed in law to have his home-where his wife and family reside, but if he is actually away from them he will acquire a settlement by their residence, although he may never be with them while acquiring such settlement. Hardwick v. Raynham, 14 Mass. 363. Having lived in Parsonsfield for a long time "with his family, as his permanent place of abode, he must have had his home in the town, though, he might not have gained a legal settlement there. Having once acquired a home' in Parsonsfield, he could change his domicil only by acquiring a new one ; but of such new acquisition there is no proof. He was a legal voter ■ in .the town of Parsonsfield for state and town officers. Constitution of Maine, Art. 2. sec. i, Slat. 1821. ch. 114. • But he must have his home where he was entitled to vote. Putnam v. Johnson als. 10 Mass. 488.'
    
      
      M'Intire, for the plaintiffs.
    A fixed habitation is essential to the idea of domicil. It is not enough for the person to stop, even a long time, for any temporary purpose. If he have no fixed abode, for an undefined period, he is a sojourner, or a wanderer. All persons who abandon their families to public charity, wandering abroad, lodging in outhouses or in the open air, and not rendering a good account of themselves, are deemed in law to be rogues and vagabonds. Jacob's Law Diet, art. Vagabond. Vagrant. They have no home. This is defined to be, one’s own house, or private dwelling, the place of his constant residence, to which he returns for his x-efreshment and rest, when not employed in his regular avocations abroad. A man unsettled in aixy such habitation, is a vagrant.
    The legislature cannot be presumed, in this or any other statute, to use terms and language in any other than their usual, natui-al and common' acceptation, or technical meaning. And if the expression “ dxvells and has his home” is to be thus understood, then the pauper xvas not within the meaning of the act at the time of its passage. He was then, in every sense of the tenn, a vagrant. If he had a home for one purpose, he had for every pux-pose. But in what school district in Parsonsfield could he have been taxed ? or at what house could a notice or summons be left, as his usual place of abode ? Not where his wife and children dwelt, for he never went there ; — but in the highways, either in Parsonsfield, or the adjoining towns, as he happened to stroll.
    The residence of his wife and children in Parsonsfield afford only prima facie evidence of the residence of the husband; and this presumption arises from what is usually found to be true. But like all other presumptive evidence, this is liable to be controled by positive proof to the contrary; and such pioof is afforded in the present case.- For six years past, amid all their removals, he had never been with them, but wandex-ed elsewhere. Nor has the residence or settlement of the wife or children ever been held to give one to the husband. They may derive from him, — but he cannot from them. Their residence can, at most, only be considered as indicative of his, where his is not appai’ent by other evidence.
    
      The position that a domicil, once acquired, continues till exchanged for a new one, is considered unsound. If it were true, there would be no vagrancy. But Vattd b. 1. sec. 219. after remarking generally that the children of vagabond parents have no country, observes that the country of the vagabond is aLjO the country of his child, while the vagabond is considered as not having absolutely abandoned his natural or original domicil ; — thus clearly admitting that he may thus abandon it, without a new acquisition.
    But the pauper in this case most clearly evinced his intention of abandoning his home in Parsonsfield, having left it without any intention qf returning, and persisted for six years in the life of a vagrant which he had deliberately chosen. And thus not being settled there by a fixed residence at the date of the passage of the act, the defendant incurred its penalties by bringing and leaving him within that town.
   Mellen O. J.

delivered the opinion of the Court as follows, at the succeeding August term in Oxford.

If according to lega] principles, Isaac Stanton, the pauper, is to be considered as having resided, dwelt and had his home in Parsonsfield on the 21st of March 1821, then he gained a settlement in that town by virtue of the act passed on that day relating to. the settlement and support of the poor. — It appears that from 1800 or 180,1 to 1817 he lived with his wife and children in Parsonsfield, with the exception of a short time during which he resided in another town about the year 1812 — that jn 1817 he separated from his wife and family and has never had any connection with them since ; though he has continued generally to. reside in Parsonsfield; sometimes employed in his trade of a mason there and in adjoining towns ; and sometimes idle — as mentioned in the exceptions, — It appears also, that with the exception of nearly a year, the wife and children have Jived and kept house in that town. From these facts what is the legal conclusion as to. the domicil of the pauper ? It is clear that during all the time that he resided in Parsonsfield and, lived with his family, he in. the strictest sense of the words, dm,U and had his home in that town, — In this situation he was in 1817 — and since that time, he has generally resided ¿here, though he has had no particular house in that town as his place of fixed abode. There is no fact in the case tending to shew that he has ever contemplated a residence in any other town or has in any manner lost his rights as a townsman, or an elector of State, County or Town officers, so far as residence could give or affect such rights. Nor is there any fact by which it appears that he may not return to and live with his family whenever he may incline so to do; or, in a word, that he may not resume his rights as the head of his family and former homo at his option. — As he has not become domiciled in any other town, and for the other reasons suggested, we are of opinion that his domicil in Parsonsfield must be considered as continuing and existing when the act was passed ; of course he then gained a legal settlement in that town, and the defendant was not guilty of the violation of any law in bringing the pauper into the town of Parsonsfield and leaving him there, as alleged in the writ. — We sustain the exceptions — and the verdict is set aside.

A neto trial may be had in this Court.  