Inhabitants of Warren v. Inhabitants of Thomaston

Rice, J. The case comes up on motion and exceptions. The motion is based upon several specifications, which may, however, be reduced to two general propositions. First, that the verdict is against the evidence in the case. Second, that it is against law. The first proposition may properly be discussed under the motion; the second under the exceptions. The question at issue was the legal settlement of a pauper by the name of Lawrence. It appears from the case that the original derivative settlement of the pauper was in Warren. The proposition to be established by the plaintiffs was, that he had lost that settlement and gained one in Thomas-ton, in his own right. If such change has been effected it was under the sixth mode of R. S., sec. 1, chap. 32, which provides, that any person of the age of twenty-one years, who shall hereafter reside in any town within this state, for the term of five years together, and shall not, during that term, receive, directly nor indirectly, any supplies or support as a pauper, from any town, shall thereby gain a settlement in such town.” The rights of the parties, in this case, depend very much upon the meaning which is attached to the word “ reside,” as used in the statute provision above cited. To reside is to dwell permanently, or for a length of time; to have a settled abode for a time. Web. Diet. The word — 418 — residence is synonymous with the words dwelling-place or home. Drew v. Drew, 37 Maine R., 389. Dwelling-place and home mean some permanent abode or residence with intention to remain. Turner v. Buckfield, 3 Maine R. 229; Jefferson v. Whitefield, 19 Maine R., 293. In our pauper law the terms residence, dwelling-place, home, have a different meaning from the word settlement. The place of one’s settlement is a place where such person has a legal right to support as a pauper. It may be in a place other than the one where such pauper has his dwelling-place, home, or residence. Thus a person may have a settlement in a place where he has never had a residence, as by derivation. So, too, a person may have a residence or home different from their settlement. Residence in a given place does not necessarily involve continued personal presence in that place. A person may be temporarily absent, and remain from home, without a change of residence. Drew v. Drew, 37 Maine R., 389. When, however, a person voluntarily takes up his abode in a given place, with intention to remain permanently, or for an indefinite period of time; or, to speak more accurately, when a person takes up his abode in a given place, without any present intention to remove therefrom, such place of abode becomes his residence or home, and will continue to be his residence or home, notwithstanding temporary personal absences, until he shall depart with intention to abandon such home. Thus to establish a “residence,” within the meaning of the statute, there must be personal presence without any present intention to depart. And to break up such residence, when once established, there must be departure with intention to abandon. In the discussions in our books upon the pauper laws the term domicile is frequently used. This term is not found in the statute, but has been interpolated upon it by the courts. Its introduction has, at times, it is feared, tended to confuse and mislead, rather than to simplify and aid "in the trial of — 419 — this class of causes. In its ordinary sense, as used by legal writers, it has not the same restricted meaning as the words residence, dwelling-place, and home have in the statute under consideration. Story's Con. Law, 39. See, also, as to change of domicile. Ib., p. 47, sec. 47. The term domicile, therefore, not being used in the statute to indicate any particular status of the pauper, as to habitation, can only be used properly as strictly synonymous with the term residence, dwelling-place or home. In any other sense its use would be erroneous and tend to mislead. Whether the judge, at the trial, in his frequent use of this word, thus limited its signification, is not certain. In presenting a cause to a jury it is of great importance that the terms used should be distinctly and clearly defined, and that the legal propositions involved should be so arranged and presented as to be easily understood. Otherwise confusion and uncertainty will be likely to follow. In his general charge to the jury the judge says : “ But if when he (the pauper) left he had an expectation or intention of removing somewhere else, in case he could find some other place to suit him, or in pursuance of some previous arrangement, and failing to find such place, or being unable to complete bis expected arrangement, did soon afterwards return, then his domicile might not be interrupted thereby.” This was evidently based upon the hypothesis that the jury should have found that the pauper had before taken up his residence in Thomaston. As a distinct legal proposition it is incorrect. If Lawrence had made arrangements for business elsewhere, and when he left Thoinaston to engage in that business did so with the intention not to return, such departure would be an abandonment of his residence in that town, and whether he found his expected business as he had anticipated or not would be wholly immaterial. The fact of abandonment, or not, depended upon the intention of the pauper when he departed. But it may be said, if there is any defect in this proposition, it was fully remedied in the instructions which immediately follow, wherein the judge — 420 — says, “ And if from all the facts in the case, the jury are satisfied that when he left he intended to return, if he failed in the object for which he left,then Iris domicile maybe regarded as being in Thomaston during such absence.” The infirmity in the instruction, when taken as a whole, is the uncertainty in which the jury were left. Distinct legal propositions are announced by the court, apparently conflicting, and so left as not clearly to indicate to the jury the precise rule by which they are to be governed. The second request was, “ That if he did go to Thomaston more than five successive summers, and at the close of each, he intended to return there the next spring, and work the next summer for a definite period, and he did in fact engage to work, and work six months, or any other definite period each year, such acts would not constitute a residence for five years, within the meaning of the statute.” This request was given with qualification, “ Providing that if when he left Gilman’s, he did intend to go back to some other place where he had a domicile.” This limitation or qualification is clearly improper. The true question to be" decided was not whether he intended to return to any particular place when he should leave Gilman’s, but whether he was at Gilman’s for a specific purpose, and for a definite period of time, intending to leave when that purpose had been accomplished and that time had expired. It was entirely immaterial whether he intended to return to a place from whence he came, or where he had a domicile, or to go to some other place in search of a new home. In further qualification of the second request, the jury were also instructed “ that if he had no other place to return to, but was at Gil-man’s without intention of returning when he had finished his summer’s work, then they might find his domicile in Thomaston, if they were satisfied the evidence warranted it upon the instructions given.” Here again is uncertainty or manifest error. It is not disc tly perceived how he could have intended to return to a place, if he had no place to return to. But as already re — 421 — marked, it is immaterial whether he had or had not a particular place in view to which he intended to return. Did he intend to make Gilman’s or Thomaston his home ? Was he in that town intending to remain an indefinite period of time, or rather without any intention to go elsewhere ? If so, then he was residing in Thomaston, within the meaning of the statute. If not, he was a temporary sojourner, not a resident. The qualification leaves this point in uncertainty. The fourth was refused. It was as follows: “That he must have had such a residence in Thomaston during dll the year, five consecutive years, to entitle the plaintiffs to prevail, and if his residence did not continue during the winter season as well as the summer, they could not prevail.” In refusing this request, the judge said, “ he must have a domicile, but need not reside there in person, but must intend to return while he was away; he must have a domicile, but need not have a home there.” Here perplexing uncertainty arises by the introduction of the word domicile, a word not found in the statute, and apparently attaching to it a meaning different from residence or home, which are the words of the statute. Thus the statute provides that any person of the age of twenty-one years who shall reside in any town in this state, &c., shall gain a settlement. The court say he must have a domicile, but need not reside there in person — he must have a domicile, but need not have a home there. If the judge intended to use the word domicile as synonymous with residence and home, the language used is repugnant and contradictory. If he intended to use the word as having a meaning different from residence or home, such use would be unauthorized. But if he intended to use the word domicile as strictly synonymous with residence or home, and only intended to say that to acquire and maintain such a residence or home, it was not necessary that a person should be at all times personally present in such place, or should have a particular house to which he could resort as matter of right, the principle intended to be enunciated would be — 422 — correct. But the difficulty is, the language used as reported, is not appropriate to convey such idea. The jury could not have so understood it. There are other objections to the instruction of the court in this case, which have been argued at considerable length, but being of opinion, for reasons already suggested, that the case should be again presented to a jury, it is not deemed important to give them further consideration at this time. Nor is it necessary to examine the questions raised by the motion. Exceptions sustained and a new trial granted.