Hallet v. Bassett

Colt, J. The plaintiff seeks to avoid the effect of the lapse of time upon his right of action, by showing that the defendant has been absent from and resident out of the state such portion of the time since his cause of action accrued, that, under the Gen. Sts. c. 155, § 9, it yet remains to him. It is well settled that such absence from and residing out of the state must be, not merely temporary and occasional, but of such character and with such intent as to constitute a change of domicil. Collester v. Hailey, 6 Gray, 517. Langdon v. Dowd, 6 Allen, 423, We are accordingly required to determine, upon the facts stated in this report, the question of the defendant’s legal domicil during the time which has elapsed since the cause of action accrued. And we are of opinion that a jury, under proper instructions, and drawing all such inferences and conclusions of fact as the evidence justifies, must find that his domicil was in Barnstable for such length of time as to bar this demand. The definition of domicil is difficult, if not impossible. To determine as a matter of fact where it is in any given case is in most instances easy and simple. It is only when the actual facts of residence are ambiguous and uncertain, in the absence of any settled and permanent abode, and when the intention of the party cannot be ascertained, that it becomes difficult. It then not uncommonly requires for its solution an inquiry into the habits, character, pursuits, domestic relations, and indeed the whole history, of the man from his youth up, depending in the end upon such preponderance of the evidence in favor of one of two or more places that the facts and circumstances tending to show a domicil there overbalance all like proof tending to fix it elsewhere. Without going into all the evidence reported, it is sufficient to advert to a few of the well settled maxims applicable. Domicil of origin or domicil acquired remains until a new one is acquired. Native domicil is not so easily changed as acquired domicil, and more easily reverts. A man can have but one domicil at the same time for the same purpose. Change of domicil does not depend so much upon the intention to remain [171] in the new place for a definite or indefinite period, as upon its being without an intention to return. An intention to return, however, at a remote or indefinite period, to the former place of actual residence, will not control, if the other facts which constitute domicil all give the new residence the character of a permanent home and place of abode. The intention and actual fact of residence must concur, when such residence is not in its nature temporary. There is a right of election by expressed intention, only where the facts of residence are to some extent ambiguous. Notes to Guier v. O’Daniel, 1 Am. Lead. Cas. (4th ed.) 747-750. Wilbraham v. Ludlow, 99 Mass. 587. Shaw v. Shaw, 98 Mass. 158. In the present case, the defendant appears to have been a seafaring man, principally employed in maritime pursuits. Facts which would be significant and satisfactory in reference to persons of more fixed and permanent habits become of less moment when connected with one whose life is of necessity roving and migratory. The domicil of such a one continues during years of wandering and absence. The omission to vote or pay taxes for a part of the time in Barnstable, in connection with the fact that he never voted or paid taxes anywhere else, is of small weight. The breaking up of his family there was not occasioned by a change of residence. He always had there a sleeping room furnished with his furniture, which he occupied more or less frequently and for longer or shorter periods. His children remained there. He had no house or furniture or property of a permanent character elsewhere. His residence elsewhere was in different places, of comparatively short duration. And on the whole we think it is a case where effect should be given to the intention which he testifies he always had, to return to Bara.itable and to retain that as his home. Judgment for the defendant.