
    The Town of Barton v. The Town of Irasburgh.
    
      Pauper. Domicil.
    
    M,, having no family and no property except his clothes and two axes, and no particular place which he called his home, worked at different places in B. from 1850 to 1859, with the exception that from July, 1852, to the spring of 1853, and from January, 1855, to the following spring, he worked in three other towns, to which he took all his property. His engagements to labor, both in B. and elsewhere, were not made for any particular period, but his only purpose seemed to be to stay as long as he could, wherever he could find employment; Held, that the fact that on each of these occasions of leaving B., he intended to return to that place to seek a home and employment there after the expiration of his particular term of service elsewhere, was not sufficient to prevent such absences from interrupting his legal residence in B.
    Appeal from an order of removal of one David Mann, a pauper. Plea, that the pauper was unduly removed, and trial by jury at the June Term, 1860, — Poland, J., presiding.
    It was conceded by the defendants that the pauper’s settlement was in Irasburgh, unless he had lost it by gaining one in Barton, by a residence of seven consecutive years-in-Barton between 1850 and 1859.
    The defendants introduced evidence tending to prove that the pauper went to Barton in the spring of 1850, and made his home there with his brother, a resident of that town ; that he kept his clothes and had his washing done there, and whenever out of employment returned to his brother’s house as his home, until the latter’s death in 1856, after which time he continued to work at different places and have his home in Barton until 1859, when the order of removal was made.
    The plaintiffs introduced evidence tending to prove that the pauper, during the period in question, did not have a home at his brother’s in Barton, and never kept his clothes nor had his washing or mending done there.
    The evidence introduced by the plaintiffs further tended to prove that the pauper was always poor ; that he had but a very few clothes, and no property except two axes ; that he was intemperate, ate opium, and was subject to fits, which made his presence very disagreeable; that on this account it was very difficult for him to obtain employment or any place to live ; that he travelled about, carrying his few spare clothes with him, and his two axes, and that he had no home or fixed abode whatever, except where he found employment from time to time ; that in July, 1852, he went to work for one Brown, in Irasburgh, and remained with him until the November following, when he went to work for one ¡Smith, in Sheffield, and worked for him until the spring of 1853 ; that from January, 1855, till the following spring he worked in Brighton; that'while at work .in these placets he had all his clothes with him and had his washing and mending done where he worked, and that there was then no place in Barton which he called his home; that his engagements to labor were not made for any particular period, but that he always seemed to desire to stay as long as he could wherever he could find employment; and that, with the exception of these periods of labor in Irasburgh, Sheffield and Brighton, he worked in Barton from 1850 to 1859.
    The defendants requested the court to .charge the jury that even if the pauper had no particular place in Barton, where he kept his effects and which he called his home, still, if, when he went elsewhere to work, he intended, on the completion of his engagements, to return to Barton to live, then his legal residence continued in Barton, and was not interrupted by such absences.
    But the court declined so to charge the jury, but instructed them that if, when so absent from Barton, the pauper had his effects with him, and no particular place or home to which he intended to return, the fact that he entertained a purpose to return to Barton to seek a home and employment there, at the completion of the particular term of service upon which he was then at work, would not have the effect to continue his residence in that town while thus absent from it.
    To this charge the defendants excepted, and the jury returned a verdict that the pauper was .duly removed.
    
      J. H. Prentiss and Cooper & Bartlett, for the defendants.
    
      John P. Sartle, for the plaintiffs.
   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.  