Town of Salem v. Town of Lyme

Hinman, J. This case depends upon the construction which should be given to the 6th section of the act providing for the support of paupers, Rev. Stat., tit. 42,) in respect to the meaning of that part of the section which provides that any inhabitant of any town in the state shall gain a settlement in the town to which he may have removed, “ if he shall reside in such town for the full term of sis years, successively, after his removal into such town, and shall, during the whole of said time, have supported himself and his family, if any he have, without his or their becoming chargeable to such town, or to the town that may by law be liable for the support of such person or family.” The question was, whether John D. Clark, one of the paupers, had acquired a settlement by commorancy in Lyme. His father’s residence was there, and the plaintiffs claimed that his established residence was at his father’s house, from the autumn of 1820 until his marriage in 1833, during which time they claimed that he acquired a settlement there for himself. During this period he had in fact been absent, at different times, for a period of three years or more in all, [79] laboring for different persons in the adjoining town of Waterford, and he had also been at sea on a whaling voyage from the port of New London, which the defendants claimed interrupted the continuity of his residence in Lyme, while the plaintiffs insisted that his residence there continued, notwithstanding these absences, as he, during all this time, continued to treat his father’s house as his home, to which, as such home, he from time to time returned. The charge of the court to the jury on these conflicting claims is the subject of this motion. It recognized the doctrine that, if the pauper had his established residence and home at his father’s when he became twenty-one, and continued to consider and treat it as his home and place of residence during these absences therefrom, and from time to time returned to it as to his home, the fact of his working for different persons in Waterford for three years in the whole, did not interrupt the legal continuity of his residence at his father’s house, and that such continuity of residence was not interrupted by his voyage at sea, provided his established home was at his father’s, and it was his intention to return to it on his return from sea, and he in fact did return to it as his home at the termination of the voyage. The defendants’ counsel, in controverting the legal correctness of the charge, have, we think, taken an erroneous view of the distinction between the actual residence of a party and the place of his domicil. It is true, there is a wide difference between domicil and mere residence. Of course they may be, and usually are, at the same place, and it is quite obvious that they may be at different places. But domicil is but the established, fixed, permanent, and may therefore be said to be the ordinary, dwelling place or place of residence of a party, as distinguished from his temporary and transient though actual place of residence. One is his legal residence as distinguished from his temporary place of abode ; or, to use the language of the charge, one is his home, as distinguished from the place or places to which business or pleasure may temporarily call him. Now, when the statute speaks of a resiidence which, if continued six years, will establish the settlement of a person, it must mean a permanent, fixed residence, [80] and not one -which is temporary merely; since, otherwise, an absence from it of ever so short duration, and for an object wholly transient in its nature, would effectually interrupt it by the commencement of a residence in another place, it being wholly incompatible that two residences under this statute should exist in the same person at the same time. No one would claim that a strictly and absolutely continuous residence is required by- the statute. But, if not, what other rule can there be than that the residence must be the fixed, permanent, established residence or home, as distinguished from that which is transient merely. It was said that, under the statute, there could be no such thing as a constructive residence. But if we are correct in what has been said, it follows that' one’s legal residence may be in one town and his actual residence in another, in which case we suppose his legal residence would be but a residence given him by construction of law, in consequence of his having had his residence in fact there for an indefinite period and his having no intention to change it. When a domicil is once acquired by a residence for an indefinite time, with an intention to continue the residence indefinitely, the statute applies to the case. The residence which the statute contemplates as sufficient to gain a settlement, if it is continued for six years, has commenced. Now no one would claim that an absence from it, for a temporary purpose, of a day, or a week, or a month, or even of several months, would interrupt it. And if no precise period can be fixed which will in law amount to an interruption of it, what other rule can be adopted than that there must be such a change of residence for an indefinite time as will amount to a change of domicil ? This presents a clear and definite rule, free from all difficulty in its application, except such as is common to all rules — the difficulty of determining the precise state of the facts. When it is once found that an absence from such a fixed residence was for a temporary object merely, with an intention not to abandon it, but to return to it, as to a home or domicil, when the object of the absence should be accomplished, it can make no difference whether the absence is for a longer or shorter period, so long as it is for such a period only as will [81] not, of itself alone, be conclusive evidence of an absence really intended to be permanent; which will usually depend very much on a variety of other circumstances accompanying the absence. The fact, therefore, that the pauper in question had worked in Waterford, at different times, for periods amounting in all to about three years, was only important as evidence merely of an intention to remain there indefinitely ; and this, of course, was for the jury, before whom the defendants had all the benefit of it to which they were entitled..' The charge in this case followed the charge in the somewhat similar case of New Milford v. Sherman, 21 Conn., 101, as nearly as the circumstances of the two cases would allow, and that charge was not, in this respect, complained of by the learned counsel engaged in the case. In substance, it is all resolved into the proposition, that the legislature intended, by the word “ reside f as used in the statute,.a fixed, permanent and established residence, as distinguished from a residence which is merely transient or temporary; and that such a permanent and established residence is not interrupted by an absence from it which is merely temporary in its character. We can not feel that there can be any doubt upon the question. The principles of the charge will be found to be fully sustained in the numerous cases cited by the plaintiffs’ counsel in support of it. We do not therefore advise a new trial. In this opinion Storrs, C. J., concurred. Sanford, J., having tried the case in the court below, did not sit. New trial not advised.